of MARFO B.V., whose registered office is at Koperstraat 31, 8211 AK Lelystad, The Netherlands (hereinafter referred to as “Marfo”).
4. Product ordering
In the event that certain products have not yet been produced, and/or no costs have been incurred in relation thereto, the Client may cancel the contract at a cancellation fee of 10% of the order.
9. Liability and Claims
The products will be delivered in conformance with any reference-sample and the product specification sheet. Minor deviations shall be accepted, but shall not give any entitlement to making any claims in respect thereof.
11. Retention of title
Title to the delivered products shall be retained by Marfo until such time as payment in full has been received by Marfo.
12. Applicable Law
ARTICLE 1. DEFINITIONS
1.1 In these general purchase conditions the following terms will have the following meaning:
1.2 In these General Purchase Conditions:
ARTICLE 2. APPLICABILITY
2.1 These General Purchase Conditions are part of all Agreements and apply to all legal relationships between Marfo and the Supplier, regardless of whether such legal relationships arise from Offers, Requests, Orders, Quotations or Confirmations of Agreements.
2.2 The applicability of the General Terms and Conditions of the Supplier, under whatever name, is excluded.
2.3 In the event of conflict between the contents of the Agreement and the General Purchase Conditions, the provisions of the Agreement will prevail.
2.4 Acceptance of these General Purchase Conditions by the Supplier is deemed to include all future offers, Orders and Agreements with Marfo.
2.5 These General Purchase Conditions are originally drawn up in the Dutch language; the Dutch version of these General Purchase Conditions is binding in case of any conflict or any difference in content or scope.
ARTICLE 3. OFFERS AND ORDERS
3.1 Requests for an offer do not bind Marfo, and are as such, only invitations to issue an offer. The offer is irrevocable and will remain valid for a period of 60 calendar days as of the date of the offer.
The offer cannot be changed during the above-mentioned period, unless the change pertains to an (additional) discount to be given by the Supplier.
3.2 Any costs related to offers or quotations are not compensated by Marfo.
3.3 Marfo is only bound to an Order if it has been laid down in writing and signed by a person authorized to represent Marfo.
3.4 If the Supplier commences its activities before having received an signed Order, referred to in 3.3 for that purpose, it does so for its own account and risk.
3.5 In the event of any discrepancy between the Order and the (possible) order confirmation, the contents of the Order shall be construed as the contents of the Agreement.
3.6 Marfo is entitled to – provided that the Supplier has not yet commenced the performance of the Agreement – terminate the Agreement at any time with immediate effect, without charge, and without any liability for compensation in respect of the Supplier and/or Third Parties.
ARTICLE 4. PRICES
4.1 The agreed prices are fixed and cannot be changed, unless the changes pertain to (additional) discounts to be given by the Supplier.
4.2 The prices stated in the Order and/or Agreement are stated in Euros and are exclusive of VAT. The prices are inclusive of packaging and DDP (Delivered Duty Paid) delivery at Marfo’s address in Lelystad, and inclusive of import levies in conformity with the Incoterms that are in force at the time of conclusion of the Agreement. The prices, furthermore, are inclusive of surcharges and/or costs related to any preparatory and other activities that are required to meet the requirements and Specifications set by Marfo, unless otherwise agreed.
4.3 If prices have been agreed ‘ex-works’ and the Supplier nevertheless provides for the transport, the risk of loading and transport will be for the account of the Supplier.
4.4 If the products to be delivered by the Supplier are collected by, or on behalf of Marfo, the Supplier must provide assistance with the loading without charge.
ARTICLE 5. DELIVERY AND PENALTY
5.1 The agreed delivery period is final. If the delivery period is exceeded, the Supplier is by law, in default.
5.2 As soon as the Supplier knows or would have prior knowledge that the Agreement will not be performed fully, properly or in good time, it will immediately inform Marfo’s Procurement Department thereof, in writing, stating the circumstances that give rise to such a situation. The Supplier will furthermore immediately propose to take transitional measures.
5.3 The Supplier may only deliver an alternative performance, if Marfo has given prior written permission for this.
5.4 Partial delivery of ordered products and/or services is only allowed if the Order explicitly states so.
5.5 In the event of delay in the delivery, the Supplier will forfeit to Marfo an immediately due and payable penalty of 0.5% of the total order amount of the Agreement, for each day that the delivery is delayed, with a minimum of EUR 500 and a maximum of 10% of the total order amount of the Agreement. The above-mentioned penalty will not be incurred if the delay can be attributed to Marfo, or if the Supplier is entitled to rely on Force Majeure. All this without prejudice to the other rights that accrue to Marfo on the basis of the law and/or the Agreement, such as the right to compensate in case of damage, and the right to terminate the Agreement, among other things.
5.6 The Supplier is liable for all damage suffered by Marfo in the event that the delivery period referred to in Article 5.1 is exceeded and/or the (likely) delay referred to in Article 5.2 is not reported, or not reported in a timely and correct manner. In such event, Marfo may terminate the Agreement wholly or partially, and/or refuse the products and return them to the Supplier, at the latter’s expense and risk, without prejudice to the other rights that accrue to Marfo on the basis of the law and/or the Agreement.
5.7 In the event of a late delivery, Marfo, in addition to compensation of damage, may claim compensation of the additional costs it was forced to incur to reasonably replace the products that were delivered late by the Supplier.
5.8 If Marfo requests the Supplier to postpone the delivery, the Supplier will store, secure and ensure that the products are properly packed and recognizably intended for Marfo. Any reasonable costs related to that can – after prior consultations – be compensated by Marfo.
5.9 The products to be delivered to Marfo must be properly packed conform the statutory regulations and decisions and any additional Marfo regulations.
5.10 The Supplier is liable for damage caused by improper packaging. The Supplier ensures that damaged products are collected and/or taken back, and will within two business days provide for a new (undamaged) delivery, without any additional costs for Marfo.
5.11 If the Parties agreed that the Supplier itself will store the products to be delivered by it, or will store them at a Third Party’s premises for the benefit of Marfo, the Supplier will store the products for the benefit of Marfo at a suitable and isolated location, take out insurance and take appropriate measures to counter loss, or loss of quality.
5.12 Delivery takes place based on Incoterms that are in force at the time of the conclusion of the Agreement: Delivery Duty Paid (DDP) at Marfo’s address in Lelystad, unless otherwise agreed between the Parties in writing.
5.13 If the products delivered are subject to a returnable deposit, the Supplier must clearly indicate this on the packing slip/delivery note.
5.14 All packaging materials used will become Marfo’s property upon receipt by Marfo. At the request of Marfo, the Supplier must take back the used packaging materials at its own account and risk.
5.15 Acceptance of products and/or services delivered only means that in Marfo’s preliminary opinion the appearance of the products delivered and/or the visible performance or the visible result of the services is in accordance with the Order. More specifically, acceptance does not bar a later reliance by Marfo on non-performance by the Supplier in respect of its obligations under the law and/or the Agreement.
ARTICLE 6. OWNERSHIP AND RISK
6.1 The ownership of the products to be delivered by the Supplier passes to Marfo upon delivery or, if earlier, at the time of payment of said products by Marfo.
6.2 The risk of all products to be delivered by the Supplier in all events remains with the Supplier until Marfo has taken delivery of the products.
6.3 The Supplier is obliged to transfer the products to be delivered and the other rights to Marfo unencumbered.
6.4 Marfo may at all times sell on and/or deliver the products delivered by the Supplier to Third Parties.
6.5 The Supplier has no right of retention or right of suspension in respect of the products and/or services, and if necessary, waives all rights in this respect.
ARTICLE 7. PAYMENT
7.1 Only (i) after a full and correct performance of the Agreement by the Supplier and (ii) provided that the products and/or services and possible auxiliary equipment delivered have been accepted by Marfo and (iii) after receipt of all related documentation by Marfo (including, but not limited to, the correct addressee and full invoice, in any event provided with Marfo’s order number) will Marfo within 45 days after receipt of the invoice, pay the products and/or services delivered into a bank account, to be designated by the Supplier.
7.2 Payment by Marfo in no way whatsoever entails a waiver of any rights.
7.3 Marfo is always entitled to pay in Euros, at the rate of exchange applicable on the invoice date.
ARTICLE 8. QUALITY
8.1 The Supplier warrants that the products and/or services delivered by it are sound. This warranty in any event entails that:
8.2 The Supplier warrants that it:
8.3 If the Supplier or Marfo becomes aware of the fact that the products delivered are a danger to the health or safety of persons, animals and/or the environment for reasons other than the normal use of the products, the other Party must be immediately informed of this. If the defective products justify that the products are recalled, either by virtue of statutory regulations or in the opinion of the Supplier, Marfo or both of them, the Supplier will immediately take action, pay the costs involved and indemnify Marfo against any Third Party’s claims. The products delivered may not be recalled without Marfo’s permission.
8.4 If the Supplier becomes aware of any shortcomings in respect of the products and/or services, the Supplier will immediately inform Marfo via fax, email, or any other manner of direct written communication. The above-mentioned notification will insofar as products are concerned, include: the nature and the quantity of the products, the identification numbers and, if applicable, batch numbers, production data and all other relevant data, including the data required to investigate which part of the products is defective.
8.5 If the products and/or services (including the related documentation) during or after completion of the production or upon or after delivery are wholly or partially rejected by Marfo or another competent authority, or if it is established in any other way that these do not meet the applicable requirements, or do not meet the reasonable expectations under the Agreement and/or are unsuitable for their purpose, the Supplier will, at the discretion of Marfo (non-exhaustively) and within a period determined by Marfo:
8.6 If the Supplier does not meet its obligation stated in Article 8.5, under a and c, or does not do so within the stated period or not to Marfo’s satisfaction, Marfo is entitled to carry out the above-mentioned activities itself or to have these carried out by a Third Party at the expense of the Supplier. Marfo is entitled to recover the costs incurred from the Supplier, or to set-off these costs against the amounts due to the Supplier.
8.7 Marfo may return products and/or documentation that do not conform to the Agreement to the Supplier at the expense and risk of the Supplier, or keep the defective products and/or documentation in its possession at the expense and risk of the Supplier. In both cases, Marfo may charge the Supplier for all direct and indirect costs and damage incurred in this respect, without prejudice to the other rights that accrue to Marfo under the law and/or the Agreement. If Marfo stores the products and/or documentation, the Supplier is obliged to collect these from Marfo within two days of Marfo’s request to this end, whereby Marfo – in case of default – may act as it sees fit.
ARTICLE 9. INSPECTION AND CHECK
9.1 Marfo, or a Third Party appointed by Marfo, may at all times inspect, test and/or check the products ordered or delivered. In that event, the Supplier will provide unlimited cooperation and access to Marfo or the Third Party, and will provide the necessary facilities and assistance at no cost.
9.2 If the products delivered, or to be delivered by the Supplier do not meet the Agreement, Marfo, or a Third Party appointed by Marfo, has the right to reject said products. In the event of rejection, Article 8.7 applies Mutatis Mutandis. In the event that the products are rejected, the costs of the inspection, tests and/or check referred to in Article 9.1 will be at the expense of the Supplier.
9.3 Irrespective of whether Marfo exercises its rights by virtue of Article 9.1, irrespective of the findings of the inspections and checks referred to in said Article, and irrespective of Marfo’s remarks to the Supplier, the Supplier remains fully liable for a correct execution of the Order.
ARTICLE 10. CONFIDENTIALITY
10.1 All Agreements, Orders and/or related correspondence are confidential and may not be disclosed by the Supplier without prior written permission by Marfo. The Supplier is furthermore obliged to observe secrecy in respect of all information concerning Marfo’s business operations which it may obtain in the context of the Order and/or the Agreement or the performance thereof, such including the nature, the cause and the result of the activities carried out by the Supplier.
10.2 The Supplier must impose the duty of confidentiality referred to in Article 10.1 on all of its employees/subordinates and Third Parties which through necessity, have obtained or have knowledge of all information referred to in this Article and warrants the performance of these obligations by said employees/subordinates and Third Parties. This clause is also intended as Third Party clause for the benefit of Marfo.
10.3 In the event of violation of the obligations referred to in Article 10.1 by the Supplier, its employees/subordinates and/or the Third Parties referred to in Article 10.2, the Supplier will forfeit an immediately due and payable penalty of EUR 20,000 per event, all of this without prejudice to Marfo’s right to compensation of damage, and all other rights that accrue to Marfo under the law and/or the Agreement.
ARTICLE 11. ASSIGNMENT OF RIGHTS AND OBLIGATIONS
11.1 Marfo is entitled to assign the entire Agreement or specific rights and/or obligations under the Agreement to group companies. By entering into the Agreement, the Supplier in advance grants the permission required for the assignment.
11.2 The Supplier may not assign or outsource the Agreement, or any part thereof, or the performance thereof to Third Parties (including Group companies of the Supplier).
11.3 Marfo may render the above-mentioned permission subject to specific conditions. Marfo’s permission, whether or not subject to conditions, will not discharge the Supplier from its obligations under the Agreement. The Supplier is responsible for the Third Parties as if it were its own performance. The Supplier is furthermore fully liable for all direct and indirect costs and expenses resulting from the assignment and/or outsourcing.
11.4 The Supplier warrants that the Third Party it engages will comply with the conditions laid down in the Agreement and these General Purchase Conditions.
ARTICLE 12. LIABILITY
12.1 The Supplier will fully compensate all direct and indirect damage suffered by Marfo or Third Parties as a consequence of, or in relation to the performance of the Agreement, irrespective of whether this damage is caused by the Supplier itself, its staff or any other persons the Supplier has involved in the performance of the Agreement.
12.2 The provisions of Article 12.1 are considered to be a clause also for the benefit of any prejudiced Third Parties. The Supplier indemnifies Marfo against any Third Party claims arising from or relating to the acts or omissions of the Supplier in the performance of the Agreement, including damage suffered by Third Parties on account of the delivery of defective products and/or services.
12.3 The Supplier will take out sufficient insurance with a reputable insurer in respect of the liability referred to in this Article as well as for other common risks and will submit a copy of the insurance policy at Marfo’s request.
12.4 Except for intent or wilful recklessness by Marfo or its executive staff, Marfo is not liable for any damage suffered by the Supplier, its staff or other persons that the Supplier has involved in the performance of the Agreement.
12.5 If Marfo is liable for any damage suffered by the Supplier on account of intent or wilful recklessness on the part of Marfo or its staff, any liability of Marfo is limited to the amount paid out under Marfo’s business liability insurance in the specific case, increased with the sum of the excess under said insurance. If, for whatever reason, payment by virtue of this insurance does not take place, any liability by Marfo is limited to the amount that Marfo could possibly owe to the Supplier under the contract.
12.6 Claims for payment of damages will prescribe after one year of the date on which the Supplier became aware of the damage and Marfo’s possible liability for said damage.
ARTICLE 13. INTELLECTUAL PROPERTY
13.1 The Supplier will grant Marfo a non-exclusive, perpetual, irrevocable, worldwide and assignable rights of use with regard to any intellectual property rights in respect of the products delivered by the Supplier, including, but not limited to trademarks and know-how. This right of use entails, amongst others, the right to use the products (or have them used) (including any changes, processing and adaptations) and the power to deliver and make the products available to Third Parties, whether or not processed or as a component of other products, and the right to provide such right of use to (possible) purchasers or other Third Parties with whom Marfo maintains relationships in the context of the performance of its business activities. If a further (legal) act is required under any legal system for the establishment and/or execution of these rights/licensing rights, the Supplier will inform Marfo thereof and will always provide all required cooperation to Marfo on its own account and own risk. A possible remuneration for this is deemed to be included in the agreed price of the products and/or services.
13.2 The Supplier warrants that the products and/or services do not infringe on Marfo’s intellectual property rights or other rights, or Third Parties.
13.3 The Supplier indemnifies Marfo and its purchasers against any Third Party claims arising from any kind of infringement of the rights referred to in Article 13.2 or similar claims and the Supplier will compensate any damage suffered by Marfo and its purchasers as a result thereof.
13.4 In the event that legal proceedings are instituted on account of infringement of those rights or if there is such a possibility, the Supplier will at its own expense and risk and without prejudice to Marfo’s rights, including its right to termination of the Agreement:
Adjustment and/or replacement will not entail that Marfo will be restricted in the possibilities for use of the products or results of the services.
13.5 The Supplier will, for its own account and in consultation with Marfo, defend Marfo in the event that legal proceedings are instituted against Marfo on account of infringement of intellectual or industrial property rights of Third Parties, and will bear all costs in this context, including the lawyer’s fees and any costs Marfo might be ordered to pay.
13.6 Insofar as Marfo provides any auxiliary materials to the Supplier in respect of which Marfo has intellectual property rights, the Supplier will acknowledge that Marfo at all times, is, and will remain the Party entitled to these materials and the Supplier will not acquire any intellectual property rights or title in respect of said materials. The Supplier will, at its own expense and risk, manage the auxiliary materials referred to in this paragraph and keep them in a good state. It will not use these for, or let them used by Third Parties without Marfo’s written permission.
13.7 If the Supplier, whether or not in conjunction with Marfo, develops products, know-how, documentation for Marfo with respect to the products and/or services, any intellectual property rights to be relied on in this respect as well as all intellectual property rights in respect of the results of the services are exclusively vested in Marfo. If any further (legal) act is required under any relevant legal system for the establishment and/or execution thereof, the Supplier will inform Marfo thereof and will always provide all required cooperation to Marfo at its own account and risk. A possible remuneration for this is deemed to be included in the agreed price of the products and/or services.
ARTICLE 14. FORCE MAJEURE
14.1 In the event that Force Majeure prevents the parties from complying with their obligations, these obligations are suspended for the duration of the Force Majeure situation.
14.2 Force Majeure on the part of the Supplier in any event does not include: strikes, occupational disability of staff, understaffing, illness of staff, energy problems or energy shortages, shortage of raw materials, transport problems, automation problems, increase in wage costs, late delivery and/or unsuitable materials, attributable shortcoming or unlawful act on the part of the subcontractors or Third Parties engaged by the Supplier, liquidity problems or solvency problems on the part of the Supplier and disruptions in the production of the Supplier. The events stated in this paragraph do not justify any extension of the delivery period or other non-performance of the Agreement.
14.3 A successful reliance of the Supplier on Force Majeure requires that the Supplier immediately informs Marfo in writing as soon as the Force Majeure situation arises, with submission of the necessary evidence.
14.4 If the Force Majeure situation exists longer than 30 days, Marfo is entitled to terminate the Agreement by means of a written statement without charge – and without any obligation to pay damages – or to terminate the Agreement with immediate effect, such at the discretion of Marfo.
ARTICLE 15. TERMINATION OF THE AGREEMENT
15.1 Marfo is entitled to terminate the Agreement, irrespective of its term, subject to a one-week’s notice.
15.2 The Supplier is not authorized to terminate the Agreement.
15.3 In derogation of Article 15.1 and without prejudice to the other rights that accrue to Marfo under the law and/or the Agreement, Marfo is entitled to terminate the Agreement at its own discretion, without charge, with immediate effect and without any obligation of Marfo to pay damages, by means of a written notice to the Supplier, in the event that:
15.4 Marfo’s claims against the Supplier are immediately due and payable in each of the cases referred to in Article 15.3, without any obligation of Marfo to pay damages or provide security.
15.5 If one of the events referred to in Article 15.3 occurs, the Supplier must immediately inform Marfo, or its legal successor, thereof in writing.
ARTICLE 16. MISCELLANEOUS PROVISIONS
16.1 These General Purchase Conditions are available in the Dutch and English language. In the event of any differences in terms of contents or purport, the Dutch text will prevail.
16.2 These General Purchase Conditions were deposited with the Chamber of Commerce and will be sent to the Supplier at first request without charge.
16.3 If any provisions of these General Purchase Conditions and/or the Agreement are null and void/annulled, the other provisions of the General Purchase Conditions and/or the Agreement will remain in full force and Marfo, and the Supplier, will enter into consultation in order to agree on new provisions to replace the null and void/annulled provisions, which will correspond as much as possible to the purport of the null and void/annulled provisions.
16.4 Marfo is entitled to suspend any claims against the Supplier and/or to set-off any claims against any claims of the Supplier against Marfo. The Supplier, however, is not entitled to suspend or set-off any claims.
16.5 Written communication is considered equal to electronic communication and communication by fax.
ARTICLE 17. APPLICABLE LAW AND COMPETENT COURT
17.1 The legal relationships between Marfo and the Supplier are exclusively governed by Dutch law, with explicit exclusion of the Vienna Sales Convention (CISG).
17.2 All disputes between Marfo and the Supplier will exclusively be submitted to the Midden-Nederland District Court. Marfo is nevertheless entitled to submit disputes to the court that has jurisdiction in the Supplier’s place of establishment.
New legislation has been in force since 1 July 2016. This legislation means that every organization is accountable for reports made in good faith of reasonable suspicions of irregularities or abuses within the organization by employees, and others who are in a contractual relationship with the organization, without the Informant being harmed in his or her own right, or legal position.
This regulation gives substance to the instruction to apply a whistleblower procedure, with the aim of contributing to the improvement and, if necessary, correction of the organization’s own functioning.
Article 1.1: Definitions
In this regulation, the following definitions apply:
Informant: the employee who has reported a suspicion of malpractice or irregularity on the basis of these regulations;
Employee: the person who performs or has performed work pursuant to an employment contract under civil law, or the person who performs or has performed work other than through employment. This also includes temporary workers, seconded employees and other hired employees, such as self-employed persons;
a suspicion of an irregularity: a suspicion based on reasonable grounds of an imperfection or injustice of a general, operational and/or financial nature that takes place under the responsibility of Marfo and is so serious that it falls outside the regular work processes and transcends the responsibility of the (direct) supervisor;
a suspicion of wrongdoing: a suspicion based on reasonable grounds of an abuse, i.e. an illegal or immoral practice, which takes place under the responsibility of Marfo and where the public interest is at stake, in connection with:
an (imminent) violation of a statutory regulation, including an (imminent) criminal offense such as theft, corruption or forgery;
an (imminent) danger to public health, the safety of persons or damage to the environment;
an (imminent) danger to the proper functioning of the organization as a result of an improper act or omission;
a (threat of) deliberately withholding, destroying or manipulating information about the above under i. to iii. said facts.
Board of Directors: the person(s) who is (are) appointed as (member of) the Board of Marfo.
Counselor: the Counselor is any person who enjoys the confidence of the Informant and who, by virtue of their profession or office, is subject to a duty of confidentiality with regard to what has been reported to him/her.
Confidential Counselor: the person designated to act as such for Marfo. external report: report to an external third person or organization as referred to in Article 3.1 of a suspected wrongdoing.
Article 2.1: Internal Report D
The Informant reports a suspected irregularity to (one of) the management (members) or via the confidential advisor as referred to in Article 2.2 in accordance with the procedure described in these regulations.
If the report of a suspected irregularity concerns the functioning of (one of) the Deputy Directors, General Manager or Director of Operations, the Informant will report the matter to the Confidential Advisor, or to the General Manager.
Unless there is a ground for exception as referred to in Article 3.1 Paragraph 2, the Reporting reports a suspected wrongdoing to (one of) the Management (members) or via the confidential counselor as referred to in Article 2.2 in accordance with the procedure described in these regulations.
If one of the Board Members has received the report, he or she will record the report in writing, stating the date of receipt, and have the report signed for approval by the Informant, who will receive a copy of it. The receiving Board Member will inform the General Manager as soon as possible of a reported suspicion of an irregularity or wrongdoing, stating the date on which the report was received.
If the report has been made to the Confidential Advisor, he/she will inform the General Manager in a manner agreed upon with the Reporting Party.
An investigation will be started as soon as possible after receipt of the report, unless:
the suspicion is not based on reasonable grounds, or
it is clear in advance that what has been reported does not relate to a suspicion of wrongdoing or irregularity.
If an investigation is initiated, Management will assess whether an external Third Party as referred to in Article 3.1 must be informed if there is a suspicion of wrongdoing.
The Management will send an acknowledgment of receipt to the Informant within two weeks of receipt of the report. In this, the Informant is notified as to whether an investigation is being launched. If no investigation is initiated, this decision will be motivated. If an investigation is initiated, the Informant will be told about who will be conducting the investigation.
Management will inform the relevant persons to whom the report relates about the report and, if applicable, about informing an external Third Party as referred to in Article 3.1, unless this could harm the investigative or enforcement interests.
Both the Informant and those to whom the suspicion of an irregularity or abuse has been reported will treat the report confidentially.
Article 2.2: Confidential Advisor
Within Marfo, an employee has been designated as a Confidential Advisor and an external Confidential Advisor is available. One of these confidential counselors can be approached to receive the report of a suspected irregularity or abuse and can act as process monitor during the reporting procedure. The HR Department has an overview of the confidential advisers present at Marfo.
The confidential counselor functions with authority, credibility and in that capacity is independent of (the management of) Marfo.
If the confidential counselor is an employee who is employed by Marfo, then Article 4.1 applies Mutatis Mutandis to the confidential counselor.
Article 2.3: Counsel
In the context of reporting a suspected irregularity or wrongdoing, the Informant can engage legal counsel at his own expense and, if desired, be represented by him.
Article 2.4 Research
Management assigns the investigation to internal or external investigators who are independent and impartial, and in any case will not have the investigation conducted by persons who may be or have been involved in the suspected wrongdoing or irregularity.
The investigators will give the Informant the opportunity to be heard. The investigators will ensure that this is recorded in writing and submit this document to the Informant for their approval and signature. The Informant will receive a copy of this.
The researchers can also hear others. The researchers will ensure that this is recorded in writing and will submit this document to the person who has been heard, for approval and signature. The person who has been heard will also receive a copy of said document.
The investigators can inspect and request all documents within the employer’s organization that they reasonably consider necessary for conducting the investigation.
Employees and those who have performed work at Marfo other than through employment, may provide the researchers with all documents that they reasonably consider necessary for the researchers to take cognizance of in the context of the investigation.
The investigators draw up a draft investigation report and give the Informant the opportunity to make comments, unless there are serious objections to this.
The investigators then adopt the investigation report. They will send the Informant a copy of this, unless there are serious objections to this.
If the researcher is an employee who is employed by Marfo, then Article 4.1 applies Mutatis Mutandis to the researcher.
Article 2.5: Viewpoint
1. Within a period of eight weeks from the moment of the internal report, the Informant will be informed in writing by Management of the substantive position regarding the reported suspicion of an irregularity or abuse. In addition, it is also indicated which steps, if any, the notification has led to. The position is formulated taking into account the possible confidential nature of the (company) information to be provided and the applicable legal provisions, such as privacy regulations.
2. If the position cannot be given within eight weeks, the Informant will be notified in writing by Management. It is also indicated within which period the Informant can expect the position. In principle, this additional period is a maximum of four weeks. If a longer term is necessary, reasons will be given as to why this is the case.
3.The persons to whom the report relates will be informed in a manner similar to that of the Informant as referred to in this article, unless this could harm the interests of the investigation or enforcement.
Article 3.1: External Report
1.After completing the procedure regarding the internal report as referred to in Chapter II, the Informant can report a reasonable suspicion of wrongdoing to an external Third Party as referred to in this Article, if:
the Informant does not agree with the position referred to in Article 2.5, and is therefore of the opinion that the suspicion has been wrongly disregarded;
the Informant has not received a position within the term(s) as referred to in Article 2.5.
2.The Informant can immediately make an external report of a suspected wrongdoing if it cannot reasonably be expected of him/her to make an internal report first. This is in any case the case if this arises from any statutory provision or if there is:
acute danger, where an important and urgent social interest necessitates immediate external notification;
a situation in which the Informant has serious indications for countermeasures as a result of the internal report;
a clearly identifiable threat of embezzlement or destruction of evidence;
a previous report in accordance with the procedure of the same abuse to the same person, who has not removed the abuse;
a legal obligation to report directly externally.
3.The Informant can make the external report to an external body that, in the reasonable opinion of the Informant, is the most suitable. An external body is in any case understood to mean:
a body charged with investigating criminal offences;
a body charged with supervising compliance with the provisions of or pursuant to any statutory regulation, such as the Labor Inspectorate or the Netherlands Authority for the Financial Markets;
another competent authority to which the suspicion of wrongdoing can be reported, including the investigation department of the House for Whistleblowers.
4. If, in the reasonable opinion of the Informant, the public interest outweighs the employer’s interest in confidentiality, the Informant can also make the external report to an external Third Party who, in his reasonable opinion, may be considered capable of directly or indirectly to be able to remedy or have remedied the suspected wrongdoing.
Article 4.1: Legal Protection Informant
1.The Informant of a suspected irregularity or abuse at Marfo who acts in good faith and with due care, both formally and materially, will be protected in his legal position. This means that the Informant is in no way disadvantaged in his or her legal position towards Marfo or his employer by or because of his or her report of an irregularity or abuse.
2.Disadvantage as referred to in Paragraph 1 of this Article is in any case understood to mean taking an adverse measure against the Informant for the sole reason of reporting the abuse, such as:
granting dismissal, other than at its own request;
premature termination or non-renewal of a temporary employment contract;
not converting a temporary employment contract into a permanent employment contract; moving or transferring, other than at their own request, or refusing a request to do so;
changing the job content, other than at their own request;
imposed appointment to another position;
withholding promotion opportunities;
taking a disciplinary measure;
imposing an investigation, speaking, workplace and/or contact ban on the Informant, or colleagues of the reporter;
withholding a salary increase or emoluments;
not accepting a sick report or leaving the Informant registered as sick;
rejecting a request for leave or granting leave, other than at his own request.
3.There is formal due diligence if:
the Informant has first raised the relevant facts internally as referred to in Chapter II, unless this could not reasonably be expected of the Informant as provided for in these regulations;
in the event of an external report as provided for in these regulations, the Informant discloses the facts in an appropriate and proportionate manner.
4.There is material due care if:
the Informant has reasonable grounds to suspect that the facts in question are correct;
a public interest as referred to in Article 1.1 under c is at stake in the event of external publication;
the importance of external disclosure from a social point of view prevails over Marfo’s interest in confidentiality.
5.a. The Informant may be expected to report carefully and reasonably. In the event of a false report or a report of which the Informant could reasonably have known – or could have come to know – that the report was incorrect or that it concerned a matter of minor importance, and which caused damage to Marfo and/or to the person(s) concerned and damage has been inflicted, appropriate measures will be taken against the Informant.
Article 5.1: Conclusions
The Works Council has approved this arrangement.
This regulation comes into effect on 01-07-2016.
This scheme will be made public by means of publication on the Marfo website (www.marfo.com).