General terms of service
By becoming a member or working with The Maffia you accept our general terms and conditions. In other words you accept our Family Rules: a set of rules that enables us to stay good friends and avoid bloodshed. Our general moto is: “Don’t do to others what you don’t want them to do to you”.
ARTICLE 0 – DEFINITIONS
Although The Maffia can’t be defined in a few words, we added some general definitions for you to understand our language and know where we are coming from.
Affiliated Company/Companies: the affiliated and associated companies within the definition of articles 1.21 and 1.22 of the Belgian Company Code.
Fixer: A member of The Maffia who will put the Customer in contact with the right Candidate.
Freelancer or Consultant or Candidate: the natural person recruited and selected by The Maffia to fill a vacancy, as an employee or on an independent basis with the Customer.
Contract: these General Terms & Conditions and the Specific Terms & Conditions.
Customer: That’s you, the Customer stated in the Specific Terms & Conditions.
Employees: personnel members, personnel members of Affiliated Companies, independent employees, subcontractors, consultants, and any other natural or legal persons directly or indirectly involved in the provision of the Services.
Force Majeure: the situation in which one of the Parties is impeded in the performance of the Contract, either in whole or in part and temporarily or permanently, beyond the control of the Party or Parties. This includes (but is not limited to): fire, war, terrorist attack, unfavourable weather conditions, force majeure on the part of the third party suppliers of The Maffia, failures in goods, equipment, software or materials of third parties the use of which the Customer prescribes to The Maffia, government measures, disruption of internet, data network or telecommunications facilities, unavailability of third party servers, strike, unavailability of Employees and/or their equipment, general transportation problems and electricity outages.
Introduction: the presentation of the Candidate’s data by The Maffia to the Customer. It is irrelevant that the Candidate has ever been proposed by another party for this vacancy or that the Customer already knows the Candidate.
Match: Where the Candidate introduced as a result of the Services of The Maffia is employed (as an employee or on an independent basis) by either the Customer or an associated party of the Customer.
Services: the recruitment and matchmaking services that the Maffia shall provide to the Customer, as described in the Specific Terms & Conditions. These services are at all times governed by the General (and Specific) Terms & Conditions.
Specific Terms & Conditions: an agreement subject to these General Terms & Conditions and describing the specific performance modalities of this Contract.
Panic Button: on specific request of the Customer the Fixer will provide a Candidate.
Platform: the online platform where the Customer can be put in contact with the Freelancer(s).
The Maffia, the service provider with official seat located in 2250 Kontich, Veldkant 33a, registered under number 0680.482.615;
ARTICLE 1 – BACKGROUND
The Maffia created an marketplace where Customers and Freelancers can meet in the context of design and marketing. Through this marketplace, The Maffia aims to facilitate working with the right Freelancer and to lower the threshold for the Customers to work with them.
The Maffia has the contacts and resources to bring the Customer and the Freelancer together and the Services enable the Customer to connect with and benefit from consultancy services offered by independent self-employed service providers in a service model managed by The Maffia. The Customer can contact the Freelancers directly, through the Platform or through the Fixer who will put the Customer in contact with the right Freelancer. With the Panic Button on the Platform, the Customer can ask for an urgent intervention from the Fixer to find him the right Freelancer.
These terms and conditions apply to all referrals of Candidates made to a Customer by The Maffia for either permanent employment or contract engagements, subject only to any variation recorded in writing in the Specific Terms and Conditions and mutually agreed to by the parties. These terms and conditions also apply to any other consultancy services provided by The Maffia to the Customer, unless any variation is recorded in writing and mutually agreed to by the parties.
ARTICLE 2 – PERFORMING OF THE SERVICES
The Maffia undertakes the obligation to perform the Services for the Customer to the best of its ability and will take into account the instructions and guidelines it receives from the Customer. Insofar as the Specific Terms & Conditions do not refer to any other capacity of the Customer, the Customer is irrevocably deemed to be a professional user acting in the context of its professional activities. The Customer is deemed to possess the relevant know-how in relation to the Services to be provided, and to engage personnel with the relevant expertise.
- The Parties acknowledge and accept that the success of acvities in the field of consultancy and recruitment depends on timely cooperation. The Customer shall at all times promptly grant all reasonable cooperation desired by The Maffia.
To enable The Maffia to introduce suitable Consultant(s), the Customer must provide The Maffia with all relevant information on its vacancies including but not limited to; the anticipated start date, the position and type of work required, the experience, training and qualifications necessary for the position, the anticipated salary and benefits package, employee/employer notice period requirements and any known risks to health and safety.
- For the avoidance of doubt, The Maffia solely provides a matchmaking service and is not involved in the actual transaction between the Customer and the Freelancer. Nevertheless The Maffia is allowed to gain access to all communication between the Customer and the Freelancer as she sees fit. The Customer will provide The Maffia all relevant documentation and communication within 48hrs as requested by The Maffia. The Maffia will enjoy complete freedom and independence in the performance of the Contract. There is no hierarchical relationship between either The Maffia and the Customer or the Customer and Consultant(s).
The Freelancer will deliver his services directly to the Customer, on an independent basis and not as a subcontractor, agent or employee of The Maffia. Besides facilitating the communication between the Customer and the Freelancer, The Maffia will, in certain cases, also provide certain Services to the Customer, as set out further in the Specific Terms & Conditions.
ARTICLE 3 – DURATION AND EXTENSION
- The duration of the Contract is stated in the Specific Terms & Conditions. The Maffia is only bound to perform the Contract after explicit acceptance by both Parties of the order for the Services in writing.
- If at the request of the Customer The Maffia commences the performance specified in the Specific Conditions prior to the signing of the Contract, then the start of the performance is qualified as acceptance of the General and Specific Terms & Conditions.
These terms and conditions compromise all of the terms, representations and warranties between the parties and take precedence over any prior discussions and/or agreements covering the services to be provided under this agreement by The Maffia to the Customer. Any implied terms, conditions orwarranties are expressly excluded from this contract.
ARTICLE 4 – TERMINATION
- Without prejudice to its entitlement to compensation of damages, The Maffia may, at its own discretion, suspend the Contract or rescind the Contract by operation of law, with no notice of breach required, with immediate effect and without judicial intervention, by the simple delivery of a registered letter:
- in the event of repeated or serious violation of the contractual obligations (such as late payment and/or non-payment on any individual payment deadline) by the Customer;
- in the event that the Customer has requested deferment of payment, is under a bankruptcy or suspension of payment procedure, is in an unstable credit position or is manifestly
- in the event of dissolution and liquidation of the Customer’s company;
- should any or all of the assets of the Customer be under foreclosure and/or a garnishment order at the request of a creditor or in the event of other executive or protective measures with respect to the Customer’s assets;
- in the event of proof or serious suspicions of fraud committed by the Customer;
- in the event that the Customer refuses to provide the requested information or has provided incorrect and/or false information.
- Further, either Party may terminate the Contract if the other Party commits a demonstrated serious error or material contractual failure and does not rectify this within a period of thirty (30) calendar days after being notified by registered letter of default by the Party invoking the error or failure. Extension of the aforesaid period for remedy of the default will not be refused on unreasonable grounds if during the remedy period of thirty (30) calendar days the Party in default has commenced remedying the default and is making reasonable efforts to continue to do so.
- If the Contract is rescinded by one of the Parties, this rescission is considered to be effective as from the date of the postmark of the registered letter giving notice that the Contract is rescinded.
ARTICLE 5 – FEES AND PAYMENT MODALITIES
Since The Maffia only aims to facilitate the communication between the Customer and the Freelancers, she does not take any margin on top of the Freelancers’ fee. In other words, The Maffia will find the competences you are looking for and we ask for this Services a one-time finder’s fee based on the anticipated period of employment.
Where a candidate is introduced by The Maffia to a Customer and that candidate is employed by either the Customer or an associated party of the Customer then the agreed Fee as agreed upon in the Specific Terms and Conditions will be payable by the Customer. This fee is based on the anticipated number of (hours) days of performance times the rates agreed in the Specific Terms & Conditions and depending on how a match was established:
- Standard Platform finder’s fee: will be the Fee if the Match is made through the algorithms of the Platform.
- Standard Fixer finder’s fee: will be the Fee when the Match is made by the Fixer.
- Panic Button fee: will be the Fee for a response from the Fixer within a maximum of 48 hours.
The fees are exclusive of VAT and any other levies imposed or to be imposed by the government.
The Customer shall pay The Maffia the applicable Fee even if the candidate is employed by the Customer in a different capacity or on a different basis to what the candidate was originally introduced for.
The introduction period will run for a period of 12 months, with such period commencing from the initial Introduction or referral of the Candidate to the Customer by The Maffia regardless of whether this is via the Fixer or through the Platform.
If a candidate supplied by The Maffia to a Customer is terminated (whether by dismissal or resignation) and within 12 months of that originaltermination date is re-employed by the Customer or offered an alternative arrangement by the Customer or an associated party of the Customer then the Customer will be charged our standard Fee as applicable with a minimum of 500 EUR. The Fee will apply regardless of the position taken by the Candidate.
- The Maffia shall invoice the Customer for the Fee referred to above and all invoices are payable thirty (30) calendar days after the date of invoice, unless specified otherwise in the Specific Terms and Conditions. The absence of a protest of an invoice in writing within eight (8) business days from the date of sending of the invoice constitutes irrevocable acceptance of the invoice and the Services set out within it.
- After expiry of the payment period, the Customer is automatically in default without any prior notice being required. Upon the expiry of the payment period, the Customer incurs conventional interest charges equalling the interest rate as defined in Article 5 of the Belgian Act on payment arrears (Act 2 August 2002, Belgian Official Journal 7 August 2002), increased by 3%. This interest is calculated as from the deadline for payment of the invoice up until the date of full payment.
- In the event of late payment of an invoice:
- The Maffia is entitled to increase the amount of invoice by 15% as compensation;
- all costs, the extrajudicial collection of the invoice, and the costs of legal proceedings and enforcement are to be borne by the Customer;
- all claims against the Customer not yet due are immediately incurred, exigible and payable; and
- The Maffia is entitled to suspend all its Services in regard to the Customer without prior notification.
- The Customer is not entitled to settlement or suspension of a payment. If in the opinion of The Maffia the Customer’s creditworthiness so dictates, the Service Provider may, even after the signing of the Contract, require the Customer to furnish security requested by the Service Provider for the payment of the Services yet to be provided, and The Maffia may suspend performance as long as the security is not furnished.
ARTICLE 6 – GUARANTEE
The Maffia will during the relevant guarantee period as disclosed to the Customer in the Specific Terms & Conditions, replace an original candidate free of charge, subject to the following:
- The Feepayable for the original Consultant(s) was paid within 30 days of the original Consultant(s) signing date with the Customer; and
- The original Consultant(s) has been let go and The Maffia is notified in writing by the Customer that the original Consultant(s) is unsuitable due to unsatisfactory performance and such notification is received by The Maffia prior to the expiration of the applicable guarantee period.
The Maffia will commit itself to replace the original candidate for the same position and will do this within 2 months after receiving the written notification that the original Consultant(s) has been let go. The Fee paid by the Customer for the original Consultant(s) is non refundable despite the above replacement provisions.
ARTICLE 7 – LIABILITY
- The liability that The Maffia may incur is derived from a best effort obligation that in cases of claim must be appropriately demonstrated by the Customer.
Insofar as maximally permitted by applicable law, the total liability of The Maffia based on attributable failure in the fulfilment of the Contract is limited to the reimbursement of direct damages up to a maximum of the compensation owed by the Customer for the specific Services that gave rise to the damages (excluding VAT). If the services extend over multiple years, then for the compensation of direct damages The Maffia may be held to a maximum of the value of the amounts invoiced for the performance of this Contract for the specific Services (excluding VAT) over a period of twelve (12) months prior to the date that the damages-causing event occurred. Under no circumstances shall the total liability for all direct damages during the entire duration of the Contract exceed the Fee paid by the Customer for the specific Services (excluding VAT). For damages incidents partly attributable to the Customer and/or a third party, the Service Provider may be held liable towards the Customer up to a maximum amount, within the limits defined above, of the share caused by the Service Provider’s demonstrated error, to the exclusion of any joint and several liability with the other debtors. This provision applies regardless of whether the claim is brought on a contractual or extra-contractual basis.
ARTICLE 8 – CONFIDENTIALITY
Confidential information is defined as all information of any form whatsoever (oral, written, graphic, electronic, etc.) exchanged between the Parties in the context of this Agreement.All information the Parties will receive or get access to by using the Services will be considered as strictly confidential.Is in any case considered to be confidential information (non-exhaustive):
- all personal data of which the Parties become aware during the Agreement;
- all forms and types of financial, business, scientific, research, technical, economic, competitively sensitive or marketing information;
- information about clients, suppliers and representatives of the Customer/Freelancer;
- all information as clearly indicated as confidential or with words of similar meaning.
Each Party and its employees must keep confidential all confidential information received from another Party in the performance of this Agreement. Additionally, the Parties may only use the confidential information for the purposes of the present Agreement. The Parties may not disclose the confidential information to third parties without the consent of another Party in writing. At a minimum, any information designated as confidential by one of the Parties will be considered as such.
Shall not be considered as confidential information: any information of the Parties that:
- entered in the public domain without the intervention or fault of one of the Parties;
- was available to the Parties on a non-confidential basis prior to its disclosure in the context of this Agreement;
- was, is or becomes available to the Parties on a non-confidential basis from a person who is, to the Parties’ knowledge, not bound by a confidentiality agreement with one of the Parties or otherwise prohibited from disclosing the information;
- is required to be disclosed by law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction.
The confidentiality obligation shall continue to exist for a period of three (3) years after the communication of the confidential information and in any case at the latest three (3) years after the end of this Agreement, regardless of the cause of termination of the Agreement.
- ARTICLE 9 – PROTECTION OF PERSONAL PRIVACY
- Each Party must at all times adhere to its respective obligations under applicable law in regards to the processing of personal data in connection with personal data that is to be processed pursuant to this Contract. The Customer undertakes to refrain from granting The Maffia access to personal data within the framework of this Contract, except when the performance of the Contract would be impossible without such access. The Customer undertakes in such a case only to grant access to the personal data that are strictly necessary for the execution of the Contract.
- The processing and exchanges of personal data in the context of this Contract are subject to the Data Protection Act and Regulation 2016/679 of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (“GDPR”), together called the “Personal Data protection legislation”. The terms used in this Contract (“personal data”, “data controller”, …) have the same meaning as in the Personal Data Protection legislation.
- Controller to controller transfer: In respect of the personal data exchanged between Parties in the context of this Contract:
- The Maffia shall be considered as the data controller of the Personal Data the Maffia processes; and
- The Customer shall be considered as the data controller of the Personal Data that the Customer processes.
- With regard to the information that has to be provided towards the data subjects, each Party warrants that all necessary information with regard to the processing of personal data, as required by the Laws and Regulations, has been provided to the data subjects before the data are transferred to the other Party; this information will a.o. include the fact that the other Party will receive the data and that it will, as a data controller, use these data for the purpose of providing the service to the data subject.
- If a Party receives or has access to Personal Data, in the context of the execution of this Contract, then it shall:
- shall respect all obligations it bears in its quality of Data Controller and shall not take any action, or permit any action to be done, that may lead to a breach of the Personal Data Protection legislation,
- consider the Personal Data as Confidential Information, take appropriate security measures to protect the Personal Data against unauthorized or unlawful processing.
ARTICLE 10 – NON-SOLICITATION
The Customer agrees that it will not actively approach the Employees of The Maffia directly or indirectly with the intention of engaging these Employees, and that this obligation commences as from the start of performance of the Services and continues until twelve (12) months after the end date of the Services and/or termination of the Contract, whichever is later, excepting where agreed otherwise by the parties in writing.
If the Customer contracts an Employee of The Maffia or recruits or use the services of any such Employees, whether under an employment relationship, on an independent basis and/or through a company, the Customer shall pay to The Maffia an amount of 50.000 EUR. This sum shall be payable on the date on which the Employee is first engaged or on which the Employee’s services are first used.
Furthermore, the Customer agrees that it will not actively and directly approach the Candidates as introduced by The Maffia to bypass the Fee and this obligation commences as from the start of the performance of the Services and within twelve (12) months after the Services and/or termination of the Contract, whichever is later, excepting where agreed otherwise by the parties in writing. If the Customer contracts a Candidate of The Maffia or recruits or use the services of any such Candidate, whether under an employment relationship, on an independent basis and/or through a company, with the knowledge of bypassing The Maffia the Customer shall pay to The Maffia an amount of 50.000 EUR.
ARTICLE 11 – GENERAL STIPULATIONS
The present Contract is governed by Belgian law. Application of the Vienna Sales Convention of 11 April 1980 (CISG) is excluded. In the event of disputes concerning the implementation and/or interpretation of the present Contract which cannot be resolved amicably, only the Courts of Antwerp (division Antwerp) will be considered competent. Any claim of the Customer relating to the Services provided expires six (6) months after the date on which the Customer becomes aware or reasonably could have become aware of the damages-causing events giving rise to the claim.
Neither this Contract nor the rights or obligations arising from it may be transferred in whole or in part without the express written consent of both Parties. Without prejudice to the foregoing, the Service Provider is at all times authorised to transfer this Contract or the rights or obligations derived from it, in whole or in part, to an Affiliated Company without requiring the explicit and written consent of the Customer.
The nullity of any provision or part of a provision under this Contract will in no way affect the validity of the remaining portion of the provision or the rest of the provisions and clauses. By mutual agreement, the Parties will make every effort to replace the invalid clause with a valid one with the same, or largely the same, economic impact as the invalid clause had. A Party cannot be considered to have waived a right or claim under this Contract or relating to a default of the other Party excepting where this waiver is made explicitly and in writing.
If under application of the preceding paragraph a Party waives rights or claims under this Contract that are derived from continuing breach of Contract or other default of the other Party, this waiver can never be interpreted as waiver of any other right under this Contract or concerning a continuing breach or other default of the other Party, even if the two situations exhibit significant similarities.
In the event of General Terms & Conditions and the Specific Terms & Conditions, the Specific Terms & Conditions prevail.
All notifications, requests and other communication under this Contract (excluding everyday operational communications) shall be in writing by registered letter with proof of receipt or in another conventional method of communication agreed between the parties.
All provisions of the Contract explicitly identified as extending beyond the termination (including rescission) or expiry of the Contract, as well as all provisions of the Contract the performance of or compliance with which is intended after the termination or expiry of the Contract, shall continue and remain fully in force beyond the termination or expiry of the Contract. Specifically, but not exhaustively, all provisions relating to liability, confidentiality and non-solicitation continue after the termination of the Contract under any and all circumstances.
The titles and headings in this Contract are solely indicative and do not in any way affect the content or scope of the provisions or the rights and obligations derived therefrom.