Terms and conditions

Version July 2023

These are the general terms and conditions of LINKITSYSTEMS INVESTMENTS (PTY) LTD (“LINKIT“), a private company with limited liability registered with the trade register under number 2022/520020/07 (“Terms“).

Chapter 1 General

Clause 1. Definitions

1.1 The terms in these Terms that start with a capital letter shall have the following meaning, or as defined elsewhere in these Terms:

Affiliates: means any entity which Controls, is Controlled by, or is under common Control with LINKIT, and the term “Control” means the direct or indirect ownership of no less than 50 percent of the shares and interests entitled to vote for the directors (or equivalent) of an entity or equivalent power over management of an entity. It is clarified that Affiliate shall mean LINKITSYSTEMS (PTY) LTD, ITPROSPER (PTY) LTD and any entity that directly or indirectly Controls, is Controlled by, or is under common Control with LINKITSYSTEMS INVESTMENTS (PTY) LTD.
Agreement: the arrangements between the Client and LINKIT as confirmed in writing in an offer, a (framework)agreement and/or additional agreement (commonly referred to as ‘project statement’) with regard to the provision of the Performance or part thereof.
Client: the legal entity or natural person acting in the course of a business or profession that will receive or desires to receive the Performance(s) from LINKIT.
Defect: a substantial error, failure, malfunction, bug or nonconformity in the Software or Performance (if technology related) that prevents such (technical) Software or (technical) Performance from substantially complying or operating in accordance with, the applicable definition of done or acceptance criteria.
GDPR: the General Data Protection Regulation (EU) 2016/679.
Intellectual Property Rights (IPR): all intellectual property rights, whether registered or unregistered, in any part of the world, including but not limited to: patents, copyright (thereby including rights in software, source- and object code), rights in designs, database rights, trademark rights, trade name and domain name rights and all similar or equivalent rights or forms of protection.
Knowhow: all (technical) knowledge and (technical) information, including but not limited to, unpatented inventions, formulae, designs, drawings, procedures, processes, routines, methods, methodologies, software(source codes), guidelines, libraries, tools, together with accumulated skills, experience and knowledge which is of economic and/or commercial value.
Outsourcing: LINKIT making available staff to perform activities under the supervision and control of the Client.
Performance: the product- and/or service performance of any kind, as provided by LINKIT to the Client.
Software: the tailormade software solution that LINKIT develops on behalf of and for the benefit of the Client as agreed in the Agreement.
Staff: the IT employee assigned by LINKIT to execute certain Performance activities, whether or not in the context of Outsourcing.
Stories: short descriptions of (a) desired feature(s)/functionality(ies), written in the user’s language.

1.2 These definitions apply in both plural and singular form.

1.3 The headings to the paragraphs to these Terms are inserted for reference and convenience purposes only and shall not affect the interpretation of, or modify, any of the provisions to which they relate.

1.4 Save where clearly indicated to the contrary, expressions, terms or words defined in these Terms shall bear the same meanings in any Agreement or annex thereto, unless such Agreement or annex contains an alternative definition for the expression, term or word.

Clause 2. Applicability Terms

2.1. These Terms apply to all offers and Agreements whereby LINKIT provides a Performance to a Client.

2.2. Deviations from and additions to these Terms are only valid if they have been agreed in writing in the Agreement. If any provision of these Terms is null and void or is annulled, the other provisions of the Terms shall remain in full force and effect. LINKIT and the Client will enter into consultation with the aim of agreeing new provisions to replace the null and void or annulled provisions, whereby the aim and purport of the null and void or annulled provisions will be observed as much as possible.

2.3. LINKIT is entitled to amend the Terms at any time, after which the amended terms shall apply to subsequent offers made, subsequent Agreements concluded, subsequent work commissioned to LINKIT from existing Agreements and to legal relationships arising subsequently.

2.4. These Terms have also been drawn up for the benefit of: a. all companies which LINKIT is affiliated with in a group, has or has had a management or cooperation agreement with including their directors and shareholders; and b. all directors, employees, (hired) Staff and third parties (as well as their heirs) who work/have worked in any way for or were affiliated with or employed by LINKIT. These Terms apply as a third-party clause as referred to in Book 6, Section 253 of the Dutch Civil Code for the benefit of all persons and legal entities referred to in this section. As a result they are entitled to invoke these Terms, or the respective provisions, as the occasion arises.

2.5. Any relaxation, indulgence or delay by LINKIT in exercising, or failure by LINKIT to exercise, any right under these Terms of the Agreement shall not be construed as a waiver of that right and shall not affect the ability of LINKIT subsequently to exercise that right or to pursue any remedy, nor shall any relaxation, indulgence or delay constitute a waiver of any other right (whether against the Client or any other person).

Clause 3. Offers and Agreement

3.1. All offers, quotations and other statements of LINKIT are without obligation and subject to the reservation of an Agreement duly signed by both LINKIT and the Client.

3.2. The Client guarantees the correctness and completeness of the information provided by or on behalf of it to LINKIT on which LINKIT bases its offer.

Clause 4. Service performance

4.1. All Performance requests are exclusively accepted and executed by LINKIT. This also applies when it is the explicit or tacit intention of a Client that certain activities will be performed by one or more specific persons. LINKIT will be free to have the Performance assignments carried out by (hired) Staff under its responsibility of LINKIT. The provisions of articles 7:404, 7:407 paragraph 2 and 7:409 of the Dutch Civil Code are hereby declared inapplicable.

4.2. LINKIT is also entitled to entrust Staff and/or employees of Affiliates with the provision of the Performance or to use the support of third-party companies to fulfil the Performance.

4.3. LINKIT undertakes every effort to perform the Performance with due care, where appropriate in accordance with the arrangements and procedures as agreed with the Client in the Agreement. All Performances of LINKIT are executed on the basis of a best efforts obligation.

4.4. In the event that employees and/or Staff of LINKIT provide any services at the Client’s location, the Client will provide – free of charge – the facilities reasonably requested by those employees and staff, such as a workspace with computer, data and telecommunications facilities. Any workspace and facilities will meet all statutory and other applicable requirements regarding working conditions. The Client shall indemnify LINKIT against claims from third parties, including staff and/or employees of LINKIT, who suffer damage in connection with the execution of the Agreement, which is the result of acts or omissions by the Client or the result of unsafe situations within its organisation. The Client will share the applicable house- and security rules with the employees and staff deployed by LINKIT before the start of the service activities.

Clause 5. Information and cooperation

5.1. In order to facilitate the proper performance of the Agreement, the Client shall at all times provide LINKIT with all data or information deemed useful, necessary and desirable by LINKIT in a timely manner and render all cooperation. If the Client deploys its own personnel and/or auxiliary persons with respect to providing cooperation in the performance of the Agreement, such personnel and auxiliary persons will have the necessary knowledge, expertise and experience.

5.2. Unless agreed otherwise in the Agreement, the Client bears the risk of the selection, use, application and management in its organisation of the software, websites, data files and other products and materials and of the services to be provided by LINKIT. Unless agreed otherwise in the Agreement, the Client is responsible for the correct implementation, configuration, migration and/or use of the Software, websites, data files and other products and/or services.

5.3. The Client warrants that all materials, data, software, procedures and instructions as provided by the Client to LINKIT in connection with the performance of the Agreement, are at all times correct and complete.

Clause 6. Price and payment

6.1. All prices are exclusive of value added tax (VAT) and other levies imposed or to be imposed by the government. All prices are always in euros and must be paid in euros.

6.2. Any preliminary calculations, quotes and budgets issued by LINKIT are indicative from which no rights or expectations can be derived. An available budget provided to LINKIT by the Client is never considered as an agreed (fixed) price for the Performance to be executed by LINKIT.

6.3. With regard to the amounts due by the Client, the relevant documents and data from LINKIT’s administration or systems provide full evidence, without prejudice to the Client’s right to provide evidence to the contrary.

6.4. LINKIT is entitled to annually adjust the applicable prices and rates with due observance of the Harmonised consumer price index (HICP), series 2015=100, from January compared to January of the previous year.

6.5. In the absence of an expressly agreed invoicing schedule in the Agreement, all amounts relating to services provided by LINKIT in connection with the Performance under the Agreement, will be considered due per calendar month in arrears.

6.6. Unless the Agreement determines otherwise, a payment term of thirty (30) days as of the invoice date applies in relation to the payment of invoices from LINKIT. The Client is not entitled to suspend or set off any payment owed to LINKIT.

6.7. If the Client fails to pay the amounts due or fails to pay them on time, the Client will be liable to pay statutory commercial interest on the outstanding amount, without any reminder or notice of default being required. If the Client continues to fail to pay the claim, also after a reminder or notice of default, LINKIT may assign the claim, in which case the Client, in addition to the total amount due at that time, will also be obliged to pay all legal costs, including collection commission and all costs charged by external experts, on the attorney and own client scale.

Clause 7. Intellectual property

7.1. Ownership in and to all Intellectual Property Rights in relation to the Software as developed for and provided to the Client will be vested in the Client, subject to the condition that the Client has complied with all obligations pursuant to the Agreement, especially payment obligations.

7.2. If and insofar as LINKIT provides to the Client (as a service) certain software, infrastructure, libraries or other code of third party providers, the (licence) terms of such third party provider shall apply, setting aside any provisions to the contrary in these Terms. LINKIT will provide these (licence) terms to the Client upon request. With the commission of the Performance, the Client accepts the applicability of such third party (licence) terms.

7.3. Any granted rights, including a right of use (licence), are granted to the Client solely under the condition that the Client has fulfilled all (payment) obligations arising from the Agreement in a timely manner. If the granted right of use is subject to a periodic payment obligation, the right of use will accrue to the Client as long as its periodic payment obligation has been completely fulfilled.

7.4. Any right of use granted to the Client will at all times be non-exclusive, non-transferable to third parties and cannot be sub-licensed, unless the Agreement explicitly determines otherwise.

7.5. The Client is not permitted to remove or change any indication concerning the confidential nature or concerning copyrights, trademarks, trade names or any other Intellectual Property Right from the Software, websites, data files or materials, or have such indications removed or changed.

7.6. LINKIT indemnifies the Client against any legal action of a third party based on the allegation that Software, websites, data files or other materials developed by LINKIT itself infringe an intellectual property right of such third party, on the condition that the Client immediately informs LINKIT in writing about the existence and content of such action and leaves the handling of the case, including making any settlements, entirely to LINKIT. To this end the Client will grant LINKIT any required powers of attorney, information and cooperation to defend himself, if necessary in the name of the Client, against these legal actions. This indemnification obligation shall lapse if the alleged infringement relates (i) to materials provided to LINKIT by the Client for use, tooling, processing or incorporation, or (ii) to changes made by the Client to the Software, website, data files or other materials without LINKIT’s written approval, or to such changes made by a third party upon the Client’s instruction. If it is irrevocably established in court that the Software, websites, data files or other materials developed by LINKIT himself infringe any intellectual property right belonging to a third party, or if in the opinion of LINKIT there is a reasonable chance that such an infringement will occur, LINKIT will, where possible, ensure that the Client can continue to use the Software, websites, data files or materials supplied, or functionally equivalent other Software, websites, data files or materials, or make necessary adjustments to the provided Software, websites, data files or materials so that there is no longer any infringement. Any other or more far-reaching indemnification obligation on the part of LINKIT is excluded.

7.7. The Client guarantees that no rights of third parties prevent software, material intended for websites (visual material, text, music, domain names, logos, hyperlinks, etc.), data files or other materials, including design material, from being provided to LINKIT for the purpose of use, adaptation, installation or incorporation (e.g. in a website). The Client indemnifies LINKIT and Affiliates from and against any claim by a third party based on the allegation that such provision, use, adaptation, installation or incorporation infringes any right of such third party.

7.8. All Knowhow, thereby including any Intellectual Property Rights in or in connection therewith shall remain vested exclusively with LINKIT. The Client never acquires any right or claim whatsoever with regard to the Knowhow. LINKIT is furthermore entitled to freely use all knowledge, techniques, concepts, models and similar conceptions that have been developed or created in the context of the Performance to the Client, in the context of its business activities and for the further development of its products and services to other clients.

Clause 8. Delivery and (delivery)times

8.1. All (delivery) periods and (completion) dates stated or accepted by LINKIT have been determined to the best of LINKIT’s knowledge on the basis of the information known to it at the time of entering into the Agreement. Any interim (delivery) dates stated or accepted by LINKIT are always target dates, of an indicative nature only, unless explicitly indicated otherwise in writing by LINKIT. LINKIT makes reasonable efforts to observe final (delivery) dates and final (completion) dates as much as possible. If a term threatens to be exceeded, LINKIT and the Client will consult to discuss the consequences of the term being exceeded for further planning.

8.2. The mere exceeding of a (delivery) term or (completion) date stated or accepted by LINKIT, whether or not final, will not cause LINKIT to be in default/breach. In all cases – therefore also in the event that a final (delivery) term or (completion) date has been expressly agreed to in writing – LINKIT will not be in default/breach on account of exceeding the term until the Client has given LINKIT written notice of default/breach. The notice of default/breach must contain a description of the breach that is as complete and detailed as possible, so that LINKIT is given the opportunity to respond adequately.

Clause 9. Confidentiality

9.1. All information and data that LINKIT, respectively the Client exchange or of which they become aware, within the framework of the Agreement, will be treated as confidential by the receiving party. The Client acknowledges that the Knowhow is always of a confidential nature and that it contains trade secrets of LINKIT and/or its suppliers or licensors.

9.2. LINKIT, and the Client, shall undertake all measures necessary not to disclose such information and data to third parties without the prior written consent of the providing party.

9.3. LINKIT, respectively the Client, shall also oblige their employees and/or other persons involved to comply with the confidentiality obligations of this clause prior to being granted access to the confidential information.

9.4. LINKIT, respectively the Client shall immediately notify the other party in writing if it can no longer ensure compliance with its obligations under this clause, in particular if a need or obligation arises or if it could have identified such a need or obligation that could prevent it from complying with confidentiality.

Clause 10. Processing of personal data

10.1. To the extent LINKIT processes personal data independently and at its own discretion, LINKIT qualifies as the ‘controller’ within the meaning of the GDPR. Where appropriate, LINKIT’s privacy statement will apply to such processing, which statement can be consulted via the website.

10.2. Insofar LINKIT processes personal data on behalf of the Client in the context of the execution of the Agreement, LINKIT qualifies as a ‘processor’ within the meaning of the GDPR. The Client is then considered the ‘controller’ and as such responsible for the lawful processing of the personal data as provided by the Client and/or processed by LINKIT in the context of the Agreement.

10.3. Insofar as any of the provisions of this clause 10 and the GDPR are inconsistent with the provisions of the Protection Of Information Act, No. 4 of 2013 (“POPIA”), the provisions of the POPIA shall prevail.

10.4. Where no separate data processing agreement has been concluded between LINKIT and the Client, the provisions of this clause also qualify as a ‘data processing agreement’.

10.4.1 The data processing by LINKIT occurs in accordance with the written instructions of the Client and the requirements applicable to LINKIT as a processor in connection with the GDPR.

10.4.2 LINKIT implements technical and organizational measures with regard to the processing of personal data, in order to protect the data against loss or any form of unlawful processing (such as unauthorized access to, modification or provision of the personal data), thereby taking into account the technological state of the art, the costs associated with implementing the measures, the nature, scope and context of the processing activities and the associated risks.

10.4.3 LINKIT strives to take such security measures that are appropriate for the intended use of the Performance, but cannot guarantee that the security measures shall be effective under all circumstances. The Client has acquainted itself with the security measures taken by LINKIT and affirms that such measures have a security level that is appropriate to the nature of the personal data and the risks of the processing thereof.

10.4.4 The Client may request LINKIT to take additional security measures, however LINKIT shall not be obliged to implement such changes as requested by the Client. Only after and to the extent such desired additional security measures have been agreed upon in writing, LINKIT will implement those measures. LINKIT is entitled to charge the costs related to the implementation of additional security measures to the Client.

10.4.5 LINKIT will process the personal data in countries within the European Economic Area (EEA). The transfer to countries or parties outside the EEA is permitted, provided the legal requirements for such transfer are met.

10.4.6 LINKIT is entitled to make use of third parties (“sub-processors”) in the context of this data processing agreement. In such event, LINKIT will impose to such sub-processors at minimum the same obligations and restrictions regarding the data protection as imposed on LINKIT under this data processing agreement.

10.4.7 In the event of a data breach (i.e. a security breach in connection with the personal data, which leads to (the potential) accidental or unlawful destruction, loss, alteration, unauthorized disclosure of – or access to – the personal data, or any indication that such a breach will take place or has taken place), LINKIT will provide the Client with the following information as soon as possible after discovery thereof: a) the nature of the data breach, where possible, including the types of personal data and categories of data subjects; b) the day and time on which the data breach was discovered; c) the potential consequences of the data breach; and d) the measures taken or proposed to address the data breach and/or limit any adverse consequences thereof.

10.4.8 The Client is at all times responsible for assessing whether a data breach must be reported to the data protection authority, and possibly the data subjects involved, as well as submitting such notification to the extent necessary.

10.4.9 The Client has the right to, at maximum once per calendar year and subject to a reasonable notice term, audit LINKIT’s compliance with the provisions of this data processing agreement and in particular the security measures taken by LINKIT by an independent IT auditor who will be bound by confidentiality obligations. Such an audit will only take place after the Client has requested and assessed the audit reports already available at LINKIT and presents reasonable arguments that still justify an audit by the Client as intended herein. The results of an audit will be assessed by LINKIT and may be implemented by LINKIT, at LINKIT’s reasonable discretion and in the manner determined by LINKIT. The costs of the audit shall be for the account of the Client.

10.4.10 If the Client reasonably requests LINKIT to assist the Client with an obligation under the GDPR (such as performance of a DPIA or the implementation of the rights of data subjects), LINKIT will comply with such a request to the extent reasonably possible. LINKIT has the right to charge the Client with the reasonable costs associated with the execution of such requests.

10.4.11 This data processing agreement has been entered into for the duration as stipulated in the Agreement and in the absence thereof, at minimum as long as LINKIT has access to the personal data of the Client. The data processing agreement cannot be terminated prematurely.

Clause 11. Dissolution and termination of the Agreement

11.1. Both the Client and LINKIT are entitled to dissolve the Agreement (in whole or in part) in writing and with immediate effect, in the event the other party has requested – provisionally or otherwise – a suspension of payments, a request for bankruptcy has been filed, the other party’s company is being wound up or its core activities are being terminated.

11.2. Furthermore, both the Client and LINKIT are entitled to dissolve the Agreement (in whole or in part) in writing and with immediate effect, on account of an attributable failure in the performance of the Agreement, provided the other party is in default (verzuim).

11.3. If, at the time of dissolution, the Client has already received (part of) the Performance in connection with the execution of the Agreement, such Performance and the related payment obligation shall not be subject to cancellation (ongedaanmaking). Any amounts invoiced by LINKIT prior to the dissolution with respect to (part of) the Performance as already provided pursuant to the Agreement, shall remain due in full in compliance with the provisions of the previous sentence and shall become due and payable at the time of dissolution.

11.4. If an Agreement which, according to its nature and content, does not end by completion, and has been entered into for an indefinite period of time, such Agreement may be terminated in writing by either LINKIT or the Client thereby taking into account the contractually agreed notice period. If no notice period has been agreed upon in the Agreement, a notice period of at least six (6) months needs to be taken into account. The Parties will never be liable for any compensation due to termination.

11.5. The Client is not entitled to prematurely terminate an Agreement for the provision of services or an assignment entered into for a specific period of time or for a specific work.

Clause 12. Liability

12.1. The total liability of LINKIT on account of an attributable failure in the performance of the Agreement or for any other reason, is limited to the compensation of the amount actually paid out by the liability insurance company of LINKIT as a result of the claim in question.

12.2. In the event the liability insurance company of LINKIT does not proceed to compensation of the damages, LINKIT’s total liability on account of an attributable failure in the performance of the Agreement or for any other reason, shall at all times be limited to compensation of direct damages up to a maximum of the total amounts (excluding VAT) received from the Client during the four (4) months preceding the event that caused the damage.

12.3. LINKIT’s liability for indirect loss or damage, consequential loss or damage, loss of profit, missed savings, reduced goodwill, loss or damage due to business stagnation, loss or damage as a result of claims by the Client’s customers, loss or damage in connection with the use of goods, materials or software of third parties prescribed by the Client and loss or damage in connection with the engagement of suppliers prescribed by the Client is excluded. Further thereto, also LINKIT’s liability on account of corruption, destruction or loss of data or documents is excluded.

12.4. Unless fulfilment by LINKIT is permanently impossible, liability on the part of LINKIT on account of an attributable failure in the fulfilment of an Agreement will only arise if the Client immediately provides LINKIT notice of default/breach in writing, whereby a reasonable period for rectification of the failure is set, and LINKIT continues to fail imputably in the fulfilment of its obligations after that period. The notice of default/breach must contain a description of the default/breach that is as complete and detailed as possible, so that LINKIT is given the opportunity to respond adequately.

12.5. A condition for the creation of any right to compensation of damages is always that the Client reports the damage to LINKIT in writing as soon as possible after it has arisen. Any claim for compensation of damages against LINKIT lapses by the mere expiry of thirty-six (36) months after the claim has arisen.

12.6. The aforementioned limitations and exclusions of liability do not apply to the extent that:

12.6.1 it concerns (damage) claims arising from physical injury or death;

12.6.2 it concerns (damage) claims that are the result of intent or gross negligence on the part of LINKIT;

12.6.3 it concerns statutory liabilities that cannot be limited or excluded under applicable law.

Clause 13. Force majeure

13.1. There is no attributable failure in the fulfilment of any obligation under an Agreement if that failure is the result of force majeure.

13.2. Force majeure is in any case understood to mean and include: strikes, weather conditions, epidemics, riots, war or natural disasters, fire, traffic, electricity and internet disruptions, loss of or damage to transport, logistical impediments as a result of government measures or other government restrictions and boycott, irrespective of whether the force majeure occurred at LINKIT or elsewhere, such as at third parties engaged.

13.3. If, as a result of force majeure, LINKIT fails to fulfil its obligations under the Agreement for an uninterrupted period of more than 3 (three) months, the Client is entitled to dissolve the Agreement in whole or in part in writing and with immediate effect, without judicial intervention being required, and without this giving rise to any right to (damage) compensation against LINKIT and without prejudice to any other right of the Client.

Clause 14. Non-acquisition personnel

14.1. During the term of the Agreement as well as twelve (12) months after the expiry or termination of the Agreement, the Client shall not, except with the prior written approval of LINKIT, directly or indirectly, employ, hire or otherwise engage any employees from LINKIT or other persons (previously) involved in the Agreement by LINKIT. Conditions may be attached to LINKIT’s approval, such as but not limited to the condition that a reasonable compensation is paid (such as to compensate for any training, costs or investments made for that employee or person).

Clause 15. Applicable law and disputes

15.1. The Agreement and these Terms are exclusively governed by the laws of the Republic of South Africa.

15.2. In the event of any dispute relating to or arising out of the interpretation or implementation of the Agreement or these Terms, the Client and LINKIT shall endeavour to resolve such dispute by mutual agreement or mediation.

15.3. If it is not possible to reach a mutually agreed solution to the dispute, either together or through mediation, the dispute shall be exclusively settled by the competent court in the district where LINKIT is vested.

Chapter 2 Outsourcing

Clause 16. Applicability

16.1. The provisions contained in this chapter will apply in addition to the provisions of the General Chapter, in the event LINKIT provides Outsourcing to the Client.

16.2. The provisions of this chapter are inextricably linked to those of the General Chapter. In the event of any conflict between the provisions of the General Chapter and the provisions of this chapter, the latter will prevail.

Clause 17. Outsourcing benefits

17.1. Before the start of the Outsourcing, the Client shall provide a description of the activities/tasks to be performed by the Staff, the associated function requirements, salary level and any other secondary working conditions. The Client shall notify LINKIT in a timely manner and in any event immediately upon becoming aware of any changes in or additions to this information, including salary increases.

17.2. If, at any time, it appears that the function description does not correspond to the actual activities performed by the Staff, the Client will immediately provide LINKIT with the correct function description. The Staff’s remuneration will then be re-established on the basis of the new function description.

17.3. The function and or salary scaling may be adjusted during the Agreement in the event the Staff is reasonably entitled to such change based on applicable law and regulations or other working conditions of either LINKIT or the Client. In the event such adjustment leads to a higher remuneration, the applicable compensation fee between the Client and LINKIT shall be adjusted accordingly.

17.4. Any overtime, working in shifts or work performance on special days (including public holidays) and/or shifted hours in relation to the Staff shall be compensated by the Client in accordance with the Client’s own applicable regulations.

17.5. The Client ensures that the Staff will have equal access to business facilities or services within his organization, in particular canteens and transport facilities, as the Client’s own employees or contractors, unless the exclusion is justified for objective reasons.

Clause 18. Working conditions Outsourcing

18.1. At least one working day before the start of the Outsourcing, the Client is obliged to provide the Staff and LINKIT with information about the required professional qualifications and the specific characteristics of the function to be filled. The Client will actively inform the Staff with regard to the Risk Inventory and Evaluation (RIE) as accepted within its company.

18.2. The Client is responsible towards the Staff and LINKIT for compliance with the obligations arising from the Basic Conditions of Employment Act, No. 75 of 1997 and the related regulations in the field of safety at the workplace, health, welfare and good working conditions in general.

18.3. In the event the Staff is involved in an occupational accident or suffers from an occupational disease, the Client will, when required by law, inform the competent authorities hereof without delay and ensure that a written report will be drawn up. In the report, the facts of the occupational accident or -disease will be recorded in such a way that it can be concluded with a reasonable degree of certainty whether and to what extent the occupational accident or -disease was the result of the fact that insufficient measures were taken to prevent the occupational accident or – disease. The Client shall inform LINKIT as soon as possible about the occupational accident or the occupational disease and provide LINKIT with a copy of the report.

18.4. The Client shall compensate the Staff for all damage suffered by the Staff in the performance of its activities, if and insofar as the Client is liable therefor under the Basic Conditions of Employment Act, No. 75 of 1997 and/or the Compensation for Occupational Injuries and Diseases Act, No. 130 of 1993.

18.5. The Client will maintain adequate insurance against liability under the provisions of this clause. At the request of LINKIT, the Client will provide proof of insurance.

Clause 19. Prohibition on further outsourcing Staff

19.1. The Client is not permitted to further outsource (“doorlenen“) the Staff to a third party, i.e. to make the Staff available to a third party for the performance of work under the management and supervision of this third party, except with the prior written consent of LINKIT. A third party also includes a (legal) person with whom the Client is affiliated in a group (concern).

Clause 20. Prohibition on further outsourcing in case of dispute

20.1. The Client will inform LINKIT in a timely manner about any intention, commencement, continuation or termination of unorganized or organized collective actions, including but not limited to a strike, lock-out or occupation. In the performance of its supervision and management of the Staff, the Client will expressly not issue any assignments to the Staff, as a result of which the Labour Relations Act, No. 66 of 1995 will be violated, such as, but not limited to, having the Staff to perform work that is normally performed by employees who are at that time participating in collective actions.

Clause 21. Direct employment relationship

21.1. With due observance of the provisions of this clause, the Client is entitled to enter into an employment relationship with the Staff.

21.2. If the Client intends to enter into an employment relationship with the Staff, the Client shall immediately inform LINKIT in writing of this intention.

21.3. If the Client enters into an employment relationship with the Staff, the Client owes LINKIT a reasonable fee in connection with the costs of the recruitment and selection of the Staff and all further investments that LINKIT has made, including the supervision and training(s) of the Staff.

21.4. The reasonable fee as referenced to in clause 21.3 will be determined on the basis of the Total Vast Income (TVI) of the Staff and the amount of hours worked for the Client via LINKIT. The TVI amounts to: 12 times the monthly salary + holiday pay, exclusive other (variable) surcharges. The reasonable fee amounts to:

If the amount of hours worked for the Client via LINKIT, at the moment of transfer, is six (6) months or less: 25% of the TVI;
If the amount of hours worked for the Client via LINKIT, at the moment of transfer, is seven (7) to and including twelve (12) months: 20% of the TVI;
If the amount of hours worked for the Client via LINKIT, at the moment of transfer, is thirteen (13) to and including eighteen (18) months: 15% of the TVI;
If the amount of hours worked for the Client via LINKIT, at the moment of transfer, is nineteen (19) months or more: 0%.

21.5. The reasonable fee will be increased with VAT. If the Client enters into an employment relationship with the Staff not immediately, but within six (6) months after the end of its deployment, the Client shall still owe to LINKIT the compensation as referred to in clause 21.3. This will apply both in the situation where the Client approached the Staff for this purpose – directly or through a third party – and where the Staff applied for a job with the Client – directly or through a third party.

21.6. For the purpose of this clause, entering into an employment relationship with the Staff is understood to mean:

21.6.1 entering into an employment contract, an agreement for the contracting of work and/or a contract for services by the Client with the Staff for the same or different work;

21.6.2 appointing the Staff as a civil servant for the same or different work;

21.6.3 having the relevant Staff made available to the Client by a third party (for example another secondment agency) for the same or different work;

21.6.4 entering into an employment relationship by the Staff with a third party for the same or different work, whereby this third party and the Client are directly or indirectly affiliated within a group.

Chapter 3 Software Development

Clause 22. Applicability

22.1. The provisions contained in this chapter will apply in addition to the provisions of the General Chapter, in the event LINKIT develops and potentially installs Software upon instruction and for the benefit of the Client.

22.2. The provisions of this chapter are inextricably linked to those of the General Chapter. In the event of any conflict between the provisions of the General Chapter and the provisions of this chapter, the latter will prevail.

Clause 23. Software specifications and development

23.1. If certain specifications or a design of the Software to be developed have not already been provided to LINKIT by or on behalf of the Client prior to or at the time of concluding the Agreement, LINKIT and the Client shall in proper consultation and on the basis of the Agile methodology (as further explained in the Agreement), specify the requirements the Software must meet.

23.2. LINKIT and the Client both acknowledge that good cooperation and good mutual communication are crucial factors for the proper specification, design and development of Software. If a development method will be used that is being characterised by the principle that the design and/or development of parts of the Software is subject to a further setting of priorities with regard to the specifications to be determined during the performance of the Agreement, such setting of priorities shall always be effected in proper consultation between LINKIT and the Client. The cooperation and mutual communication will take place as much as possible with due observance of the governance, arrangements and/or procedures as agreed to in the Agreement.

23.3. The Client always guarantees the accuracy, completeness and consistency of the data, specifications and designs provided to LINKIT, even if such data, specifications and designs originate from a third party. Inaccuracies, incompleteness and inconsistencies shall at all times be at the expense and risk of the Client.

23.4. Prior to commencement of development activities, LINKIT is allowed to request the Client for an explicit and unconditional approval of the specifications and the design of the Software (go/no-go). LINKIT is entitled to postpone the performance activities until the moment that the Client has confirmed this explicit and unconditional approval.

23.5. LINKIT’s development activities are always carried out on the basis of an obligation to perform to the best of its ability, unless and insofar as an express result has been agreed to in the Agreement and that result in question has also been described with sufficient detail.

23.6. If it has been agreed that the development of the Software will take place in phases, or if LINKIT makes use of a development method based on phased execution, LINKIT is entitled to postpone the commencement of the services that are part of one phase until the Client has approved the results of the preceding phase, whether or not in conformity with the agreed acceptance procedure (if applicable).

Clause 24. Consultation

24.1. LINKIT and the Client will periodically inform each other about the execution of the service activities, and about any circumstances that are or may be of importance to LINKIT or the Client in this regard, such as but not limited to: priority settings, sprint results, availability of means and personnel/staff both on the part of the Client and on the part of LINKIT and any other, special or (yet) unknown facts or circumstances.

24.2. If an employee engaged by LINKIT is part of a project- or steering committee which also includes one or more persons appointed by the Client, the sharing of information will take place in the manner as prescribed for in the Agreement. Any decisions made in a combined project or steering committee shall only bind LINKIT if the decision-making takes place with due observance of the Agreement made in this respect or, in the absence of written agreements in this respect, if LINKIT has accepted the decisions in writing by an authorised representative. LINKIT is never obliged to accept a decision if in its opinion this is incompatible with the content of the Agreement. The Client warrants that the persons appointed to be part of a project or steering committee are entitled to take decisions that are binding for the Client and to perform legal acts on behalf of the Client.

Clause 25. Delivery and installation

25.1. LINKIT will deliver the Software to the Client in the agreed manner. If no specific manner of delivery has been agreed to, LINKIT will determine such manner.

25.2. Only if so agreed in the Agreement, LINKIT will install the Software at the Client’s premises. In the absence of explicit arrangements in this regard, the Client will install, organise, parameterise and tune the Software itself and, if necessary, also adjust the used auxiliary software and user environments. Unless agreed otherwise in writing, LINKIT is not obliged to carry out data conversion.

25.3. The Client bears the full risk of modifications made to the Software by third parties after delivery by or on the instructions of the Client.

Clause 26. Acceptance

26.1. If no acceptance procedure has been agreed in the Agreement, the Client will accept the Software in the condition it is in at the time of delivery (‘as is’) and therefore with all visible and invisible Defects.

26.2. The acceptance of the Software results in LINKIT being discharged for the fulfilment of its obligations with regard to the development of the Software and, if installation by LINKIT has also been agreed, of its obligations with regard to the installation of the Software.

Clause 27. Compensation and payment

27.1. Unless agreed otherwise in the Agreement, the fee in connection with the development activities for the Software will also include the compensation for the transfer of the Intellectual Property Rights in relation to the Software. Any Intellectual Property Rights in relation to the Software will accrue to the benefit of the Client once the Client has completed with all (payment) obligations arising from the Agreement.