1. Terms and Conditions 

1.1.    Scope of the agreement

The Client, or each affiliate or other entity of the group to which the organisation signing this offer (“the Offer”), belongs, for which Pro-Pay will perform the Services in the scope of the Agreement, wishes to entrust certain services within its organization to Pro-Pay, who whereby accepts such assignment. A description of the services and fees are included in the Offer, if any, and they are governed by the legal provisions on contracting of work and services.

1.2.    Duration of the agreement (mandate and services)

Depending on the Services agreed, the Agreement is entered into either (i) for the performance of a specifically defined assignment, in which case it ends automatically upon completion of that assignment, or (ii) for an initial period of one (1) year and, thereafter, for an indefinite period. In the latter case, either Party may terminate the Agreement during the indefinite period by registered letter, subject to a notice period of six (6) months, which starts on the first day of the quarter following the quarter in which notice was given. This notice period applies to both payroll services and legal services.

Pro-Pay is entitled to unilaterally suspend its services or to terminate the Agreement, including the mandate for the keeping of the social documents (if applicable), without providing a notice period or an indemnity in lieu of notice in case the Client fails to pay the amounts due to Pro-Pay or to the social or fiscal authorities at their expiry date.

1.3.    Fees and payment

Pro-Pay will invoice the fees for the delivered services, if and when applicable increased by VAT, sales tax, tax deducted at source or the equivalent thereof monthly to the Client.

Invoices are payable within thirty (30) calendar days from invoice date. Invoices are dated on their actual date.

Disputes concerning invoices must be notified to Pro-Pay in writing within thirty (30) days of the invoice date, failing which the invoices shall be deemed to have been accepted. In the event of disputes regarding hidden defects, these must be notified to Pro-Pay in writing within eight days of discovery. Disputes, if and when they arise, shall not suspend the Client’s obligation to pay.

All fees are fixed until the 31st of December of the year in which these general terms take effect. Thereafter, the fees will be yearly and automatically adjusted on the 1st of January in accordance with the index mechanism of the Joint Industrial Committee 200.

The fees and payment to Pro-Pay will be in Euro, unless stated otherwise in the Offer, if any. Any payment costs or bank charges will be borne by the Client.

The invoices are payable at the registered offices of Pro-Pay. In the event of non-payment within 15 days of an exhortation sent by Pro-Pay, default interest shall be payable in the amount of one per cent (1%) per month calculated on the amount of overdue fees, increased by a fixed indemnification of ten percent (10%) of the amount of the related invoice (with a minimum of five hundred (500) Euro). 

1.4.    Protection of personal data

The purpose for the collection, processing and use of personal data from the Client is to provide the services as described in the Agreement. For that purpose, Pro-Pay will collect, organise, structure, store, adapt or alter, retrieve, consult, use, disclose, make available, align or combine, restrict, erase or destruct personal data originating from the Client concerning all categories of persons for which the Client requires Pro-Pay to handle the personnel administration.

The following categories of personal data can be processed by Pro-Pay:

I       Identification data

I       Financial specifics

I       Personal characteristics

I       Living habits

I       Household composition

I       Data regarding health to the extent that it is mandatory by law

I       Training and education

I       Profession and employment

I       National identification number

I       Religious beliefs to the extent that it is mandatory by law

I       Any other category of personal data agreed upon between parties in any other document of the Agreement.

Personal Data will be Processed by Pro-Pay as a processor for the purpose of the performance of the services under the Agreement including the following purposes:

I       Payroll and employee benefits administration

I       Compliance with social and fiscal Laws

I       Compliance with Data Protection Legislation, information security requirements and service level agreement

I       Claims management with and between the Client, Pro-Pay, the data subject(s) and/or third parties, including beyond termination of the Agreement for any reason whatsoever

I       Any other purpose of processing of personal data agreed upon between parties in any other document of the Agreement.

To the extent that Pro-Pay will process personal data under this Agreement, we act as a processor of personal data in the scope of the applicable data protection provisions, and this on behalf of the Client, who acts as data controller.

The Parties will, each in their respective capacity, process the personal data in accordance with the applicable data protection provisions to which the Client and/or Pro-Pay are subject. However, unless explicitly agreed otherwise, Pro-Pay is not responsible for compliance with any Laws applicable to the Client or the Client’s industry that are not applicable to Pro-Pay. If compliance therewith requires any actions with regard to data protection on the part of Pro-Pay in addition to the obligations set forth in this Data Processing Agreement, such actions will only be taken upon mutual agreement between the Parties

Pro-Pay will only process personal data under the authority of the Client on documented instructions from the Client, including with regard to transfers of personal data to a third country or an international organisation, unless required to do so by the applicable law to which Pro-Pay is subject; in such a case, Pro-Pay shall inform the Client of that legal requirement before processing, unless that law prohibits such information on important grounds of public interest.

Further, Pro-Pay undertakes to:

I       ensure that persons authorised to process the personal data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality;

I       take all the appropriate organizational and technical measures at its expense, taking into account the state of the art technology, the costs for applying the measures and the nature of the data to be protected and the potential risks, which are necessary for the protection of personal data against accidental or unlawful destruction, accidental loss, and the alteration of, or access to, and any other unauthorized processing of personal data;

I       not engage another (sub-)processor without prior specific or general written authorisation of the Client. By means of the Agreement, the Client gives Pro-Pay a general written authorisation to engage another processor. However, Pro-Pay shall inform the Client of any intended changes concerning the addition or replacement of other processors, thereby giving the Client the opportunity to object to such changes. In the event Client objects to such a new sub-processor, Pro-Pay will use reasonable efforts to change the affected services or to recommend a commercially reasonable change to the Client’s use of the affected services to avoid the processing of personal data by the sub-processor concerned. If Pro-Pay is unable to make available or propose such change within sixty (60) calendar days, the Client may terminate upon Notice the relevant part of the Agreement regarding those Services which cannot be provided by Pro-Pay without the use of the sub-processor concerned in accordance with the provisions of the Agreement.

I       In the event of such sub-processing, Pro-Pay undertakes to enter into a written agreement with the other processor in which the same obligations are imposed on the other processor as are imposed on Pro-Pay under this Agreement;

I       taking into account the nature of the processing and only to the extent that the relevant information or means are not otherwise at the Client’s disposal, Pro-Pay shall assist the Client by appropriate technical and organisational measures, insofar as this is possible, for the fulfilment of the Client’s obligation to respond to requests for exercising the rights of the data subject as laid down in Chapter III of the GDPR;

I       direct a data subject to the Client, if such data subject directly contacted Pro-Pay wanting to exercise any of such rights. Pro-Pay may provide the Client’s and/or its contact persons’ basic contact information to such data subject;

I       In the event of a Personal Data Breach and irrespective of its cause, Pro-Pay shall notify the Client without undue delay after having become aware of such Personal Data Breach, specifying where known or readily identifiable:

I       a)            the nature of the Personal Data Breach;

I       b)            the categories and approximate number of Data Subjects and Personal Data records concerned;

I       c)            as the case may be, the remedial actions taken or proposed to be taken to address the Personal Data Breach, to mitigate its effects and to prevent re-occurrence;

I       d)            the identity and contact details of the Data Protection Officer or another Contact Person from whom more information can be obtained.

I       e)            likely consequences of the Personal Data Breach

I       The Party responsible for the Personal Data Breach shall without undue delay further investigate the Personal Data Breach and shall keep the other Party informed of the progress of the investigation and take reasonable steps to further minimize the impact. Both Parties agree to fully cooperate with such investigation and to assist each other in complying with any notification and communication requirements and procedures as per the Data Protection Legislation.

I       A Party’s obligation to report or respond to a Personal Data Breach is not and will not be construed as an acknowledgement by that Party of any fault or liability with respect to the Personal Data Breach.

I       not disclose personal data to any third party, except (1) as the Client instructs, (2) as stipulated in the Agreement, (3) as required for processing by approved sub-processors, or (4) as required by law. If the Client instructs Pro-Pay to transfer personal data to a third party stakeholder, the Client is and remains solely responsible to enter into written agreements with such third party stakeholder regarding the protection of such personal data, and the Client shall indemnify, defend and hold Pro-Pay harmless against any and all losses arising from a transfer of personal data between Pro-Pay and such third party stakeholder, unless and to the extent such losses are attributable to proven defaults of Pro-Pay. Pro-Pay determines the format(s) in which personal data can be transferred;

I       provide an overview of all technical and organisational measures taken, on request of the Client;

I       at the choice of the Client, delete or return all the personal data to the Client after the end of the provision of services relating to processing, and delete existing copies unless the applicable law requires storage of the personal data and without prejudice to the retention set out below;

I       ensure compliance with its obligations pursuant to Article 32 of the GDPR taking into account the nature of processing and the information available to Pro-Pay;

I       Pro-Pay shall provide the Client with all information necessary to demonstrate compliance with its obligations under this Data Processing Agreement and applicable data protection legislation Pro-Pay shall allow and assist with audits, which can only be carried out by the auditor in charge of auditing Pro-Pay’s ISAE 3402 report and this maximum once a year. At the time of signing this agreement, this auditor is KPMG Belgium. Neither the Client itself nor any entity other than the auditor in charge of auditing the ISAE 3402 report may carry out this audit. Such audit can only take place if the Client has justified reasons for requesting such an audit and if these reasons are communicated and demonstrated to Pro-Pay in writing. The appointed auditor will respect any confidentiality agreements Pro-Pay may have with third parties and will inspect only those data, processes and systems relevant to auditing compliance with the GDPR. The Client shall take all appropriate measures to minimise any impediments caused by the audit to the day-to-day operation of Pro-Pay or the services provided by Pro-Pay. Before the commencement of any such audit inquiries, the Client and Pro-Pay shall mutually agree upon the scope, timing and duration of the audit.

I       “Justified reasons” means a strong suspicion of a data leak within the meaning of Article 4 GDPR, destruction of confidential Personal Data, or a material breach of any of Pro-Pay’s obligations regarding the protection of personal data. In such a case and upon written request by the Client, Pro-Pay shall grant an independent third party, certified auditor, appointed by the Client or the relevant supervisory authority, access to the relevant parts of Pro-Pay’s records and all locations and information of interest of Pro-Pay (and those of its agents, subsidiaries and subcontractors) to determine Pro-Pay’s compliance with the requirements imposed by data protection law and the provisions of this Agreement.

Notice of the audit must be given to Pro-Pay sixty (60) working days in advance.

All costs, including the hours worked by Pro-Pay’s staff in the context of the audit, shall be borne by the Client.

I       immediately inform the Client if, in its opinion, an instruction infringes the applicable data protection provisions.

The Client instructs Pro-Pay to keep the personal data on its behalf for seven years after the end of the Services, so that the statutory retention periods applicable to payroll records are covered (active retention). The Client acknowledges and agrees that Pro-Pay will thereafter keep the personal data with evidential value in a segregated archive until the end of the tenth year following the end of the Services, solely for the establishment, exercise or defence of legal claims relating to the Services (passive retention). For this passive retention, Pro-Pay acts as controller on the basis of its legitimate interest (Article 6(1)(f) and Article 9(2)(f) GDPR) and access is restricted to a limited number of authorised persons. Pro-Pay’s Data Retention Policy applies.

The Client undertakes to inform its employees about the processing of their personal data by Pro-Pay, including the retention set out above, and the possible transfer of these personal data to service providers in the scope of the assignment described by this Agreement, if applicable, also to service providers located outside of the European Economic Area. The Client guarantees that such transfer to third countries is allowed.

1.5.    Liability

Pro-Pay makes an obligation of best efforts and not an obligation of result vis-à-vis the Client and carries out the representation of the Client and the agreed work on the basis of the information that the Client provides to Pro-Pay and within the limits of the instructions issued by the Client. The responsibility for passing on the correct information, completeness and timeliness lies solely with the Client.

The Client acknowledges that Pro-Pay has no responsibility for determining the competent Joint Industrial Committee. Pro-Pay can only play an advisory role in this on the basis of the available data; the advice is purely indicative. This also applies to the application of wage scales, index adjustments and other elements that are related to the determination and follow-up of the wage. Pro-Pay has no obligation to control or audit in this regard.

Pro-Pay is only liable if and to the extent its wrongful act relating to the performance of its services has caused damages to the Client, as duly proven and documented by the Client.

In any event, any damage compensation shall be limited, in the aggregate, to 6 months’ fees based on the fees invoiced by Pro-Pay to the Client for the 6 months prior to the event that gave rise to the claim.

The Client will not be entitled to any indemnification in case Pro-Pay opts to repair the concerning damages at its own charges.

In no event will Pro-Pay be liable for any:

I       indirect,

I       consequential,

I       incidental or

I       unforeseeable damages (such as, but not limited to: loss of goodwill, business profits, lost revenue or data loss, reputational harm, loss of clientele or loss of anticipated savings) related to this Contract or the services;

Pro-Pay will not be liable for said damages related to computer failure or technical problems due to the instalment and/or use of software.

Pro-Pay will not be liable neither for any incorrect, incomplete or delayed information provided by the Client or the authorities.

The Client is responsible for the necessary safety measures, back up and general management of its IT-system. When the Client relies on Pro-Pay as a service provider to make payments as a proxy to the Client’s bank account, the Client shall provide the requested funds in the relevant bank accounts in a timely manner as requested in the relevant payment request by Pro-Pay.

Pro-Pay will pass on the necessary (cashless) payment orders to the banking institution; the Client remains liable as the Client with regard to the bank. If the Client has not provided the necessary financial resources on time and therefore no deposits can be made to social and tax authorities and / or third parties, the Client is responsible for the late payment of the amounts. Special reminders or reminders should not be made by Pro-Pay for this.

If a Client wishes to exercise his right to compensation, he must do so by registered letter within 6 months after the occurrence of the alleged error. In any event, any claim against Pro-Pay shall lapse, and Pro-Pay shall be discharged from all liability, upon expiry of two (2) years following the performance of the Service to which the claim relates, irrespective of the date on which the alleged error was or could have been discovered.

Neither the Client nor its principal or any party in the contractual chain above the Client’s principal can bring an extra-contractual claim against Pro-Pay or (an auxiliary of) an auxiliary of Pro-Pay for damages caused by an error in the performance of this framework agreement as well as any implementation agreement (SoW)between Pro-Pay and the Client. Only a contractual claim by the Client against Pro-Pay is possible for such damages, if applicable.

The Client confirms that it has notified or will notify its principal without delay, which is purely for the sake of completeness and is without prejudice to the fact that Pro-Pay may always invoke this clause against the Client or any party in the contractual chain above the principal of the Client, irrespective of whether the aforementioned notification has been given and irrespective of any reaction thereto by the principal of the Client.

Notwithstanding the foregoing, should Pro-Pay be faced with an extra-contractual claim by the principal of the Client or any party in the contractual chain above the principal of the Client, the Client shall in any event and on demand fully indemnify Pro-Pay in respect thereof.

1.6.    Force majeure

Pro-Pay shall be entitled to suspend the performance of its obligations if it is temporarily prevented from fulfilling its obligations to the Client due to force majeure.

Force majeure includes, among others: weather conditions, natural disasters, fire, power failure, telecommunications failure, terrorism, theft or loss of tools or materials, road blocks, strikes or work interruptions, import or trade restrictions, epidemics, pandemics or the outbreak of a new or mutated virus and the related government measures and cybercrime. An epidemic, pandemic or virus outbreak shall qualify as force majeure regardless of whether the disease or variant was already known at the time of conclusion of the Agreement, provided that the concrete impediment to performance was not reasonably foreseeable at that time.

Pro-Pay is no longer entitled to suspend the performance of the activities if the temporary impossibility of doing so has lasted for more than three months. Either party may terminate the agreement with immediate effect after this period has expired.

If there is force majeure and the performance of the services is or becomes permanently impossible, each party is entitled to terminate the agreement with immediate effect.

The parties shall not be entitled to compensation for damage suffered or to be suffered as a result of the suspension or termination within the meaning of this article. The Client’s obligation to pay for Services already rendered may not in any event be suspended or extinguished on the ground of force majeure.

1.7.     Non-sollicitation

The Client undertakes, during the term of the Agreement and for one (1) year after the termination of the Agreement with Pro-Pay, not to employ any employees, directly or indirectly, who had been charged by Pro-Pay, whether employed or not, with assignments with the Client or former employees who terminated their association with Pro-Pay less than six (6) months ago.

In case of breach, the Client shall owe Pro-Pay compensation equal to the amount of one (1) year’s gross salary (including benefits acquired under the agreement) or consultancy fees as paid by Pro-Pay to the worker concerned at the time of the acquisition or termination of the employment or consultancy agreement.

1.8.    Electronic provision of documents

Should the Client opt for Pro-Pay to make certain social documents (such as pay slips, the individual account, and tax forms) available electronically to the Client and/or its employees rather than on paper, Pro-Pay performs only the material act of electronic provision. The Client, in its capacity as employer, shall remain solely responsible for compliance with all applicable legal obligations relating to those documents, including the timely and correct provision of each document to the employee concerned, obtaining any employee consent required for electronic delivery and archiving, the applicable retention periods, the burden of proving that a document was effectively delivered, and any liability or sanctions arising from non-compliance.

1.9.    Audits

Pro-Pay does not allow additional audits or pen tests on our systems or in our offices by Clients or networks, as we hold the ISAE 3402 type II report. Such reports are provided only if requested and at the Client’s expense.

1.10.Use of name and logo

Since Pro-Pay is a professional payroll provider focussing on an international client base, it is obvious that Pro-Pay is proud to have Client on its list of distinguished clients.

Client hereby authorises Pro-Pay to use its name and logo for marketing purposes; this includes amongst others: the publication of its name and logo on the webpage of Pro-Pay.

Clients may not use the name of Pro-Pay.

1.11.Confidentiality

Both parties undertake to respect the confidentiality of information, data and documents and not to disclose them to third parties without the agreement of the other party.

The obligations of confidentiality of the parties remain in force after the end of the present Agreement for a period of ten (10) years and for as long as the confidentiality of the information has not disappeared, unless such confidential information is requested by governmental or police authorities. This confidentiality obligation does not apply to information that is or becomes publicly available other than through a breach of this Agreement.

1.12.Applicable law and competent courts

The Offer, if any, will be considered as ‘the Agreement’ between Pro-Pay and the Client when the Client signs the offer for acceptance, or when Pro-Pay performs the offered services on demand of the Client whereby it is obvious that there exists silent or implicit acceptance of the provisions of this Offer, if any.

In the event of any conflict between these general terms and conditions and a written agreement or written arrangement between Pro-Pay and the Client, the written agreement or written arrangement shall prevail.

This Agreement shall be governed by the laws of Belgium. Any dispute related to the validity, execution or interpretation of the Agreement including the Offer, if any, and these general terms and conditions shall be exclusively submitted to the Dutch-speaking judicial district of Brussels.