Article 1 GENERAL
For the purpose of these general terms, the following terms refer to:
- Client: the private individual or legal entity who gave engagement to the Contractor to provide certain services;
- Contractor: the office that accept the engagement;
- Activities: all activities provided or have to be provided by Contractor by any other virtue. The above applies in the broadest sense of the word and contains, in any case, the activities as mentioned in the engagement;
- Documents: all the goods and data storage devices disposed by the Client to the Contractor as well, as part of the execution of the engagement by the Contractor, the finished goods and which could include documents and data storage carriers.
Article 2 APPLICABILITY
These general terms apply on each engagement as contracted by the Contractor. Changes in these terms are only valid in case they are accepted explicitly and in written by the Contractor.
Article 3 START AND DURATION OF THE ENGAGEMENT
- The engagement will be established and will start at the receipt, by the Contractor, of the signed engagement letter from the Client. The confirmation is based on the information as provided by the Client to the Contractor at that time. The confirmation is deemed to represent the engagement fully and correct.
- The Contractor is free to proof that the engagement has been established in a different way.
- The duration of the engagement is for an unlimited period of time, unless it shall follow from the nature, content or purpose that the duration of this engagement is for a limited period of time.
- At first request, the Client will provide all information and documentation which is necessary for Contractor to fulfill its Client’s acceptance research under the money laundering and terrorism financing act (“WWFT”). The assessment or the identification and verification, which takes place in accordance with the WWFT, is reserved by the Contractor. In case the Contractor may deem it necessary, the Client will cooperate in updating this information and documentation.
Article 4 DATA CLIENT
- The Client is bound to provide all documents, which the Contractor requires in his opinion to execute the engagement correctly, in the requested form and manner to the Contractor, as well as all other information which is relevant for the execution or finalization of the engagement.
- The Client will ensure the correctness, completeness and reliability of the information as provided to the Contractor, also if they have been provided from third parties, insofar the nature of the engagement do not require something differently.
- The Contractor has the right to postpone the execution of the engagement until the moment the Client fulfilled its obligations as mentioned in paragraph 1 and 2.
- If and insofar the Client is requesting, except as that is referred to in article 15, the documents as provided by the Client will be returned to the Client.
- In case of a delay of the engagement, any damage of the Contractor, any extra expenses made by him and/or his extra fee caused by not receiving, not receiving in time or receiving the requested documents and information in an incorrect way is for the account of the Client.
Article 5 EXECUTION OF THE ENGAGEMENT
- The Contractor will determine about the way how and by which persons the engagement will be executed.
- The Contractor has the right, without notification to the Client, to outsource certain activities by a third party which is designated by the Contractor in case the Contractor is of the opinion that this is desirable and taking into account the adequate execution of the engagement. If this is reasonable be possible, the Contractor will consult any services from third parties with the Client prior to the execution of the engagement.
- The Contractor is able to render more services and able to charge these services to the Client than as agreed in the engagement if the Client will give his permission on this prior to the execution of these services, unless these activities will arise under the circumstances as mentioned under article 4 paragraph 5.
- The Contractor will execute the engagement in accordance with the applicable (profession) regulations and everything what is required under the applicable law. The Client will always fully respect the obligations of the Contractor.
- The Contractor will take into account the necessary care by selecting third parties; however, the Contractor cannot be held responsible for mistakes made by these third parties.
Article 6 CONFIDENTIALITY AND EXCLUSIVITY
- The Contractor is obligated to keep confidentiality with respect to all the confidential documents and information as provided by the Client, unless the Contractor has an information obligation based on relevant law.
- The Contractor is not authorized to use the information as provided by the Client for any other purposes than the original objectives. An exemption applies in case the Contractor requires to possess this information in a civil- or criminal court case of which Contractor is one of the parties and this information could be relevant and important.
- Unless the Contractor grant prior written authorization, the Client will not publish any content of reports, advises or any other written expressions, which have not been set up or been made with the purpose to inform third parties of that information, from the Contractor. The Client is taking the necessary care that third parties are not going to be provided with the above-mentioned content.
- The Contractor will impose his obligations to third parties as brought in by the Contractor pursuant to this article.
- The Contractor is authorized to use the processed results in figures for statistic or comparison purposes, provided that these results cannot be linked to individual Clients.
Article 7 INTELLECTUAL PROPERTY
- The Contractor will be the owner of all the intellectual property rights, where appropriate, the Contractor reserves all rights which arise from his activities or which he is making use during his activities, such as, but not limited to author rights.
- It is explicitly prohibited for the Client to reproduce, publish or to exploit these goods, with or without assistance of third parties, and could include software, design of systems, methods, advice, (model) contracts, templates, macro’s and any other intellectual products.
- It is prohibited for the Client to provide these products to third parties, other than obtaining a professional opinion with respect to the activities of the Contractor.
Article 8 PERSONAL DATA
- As part of the engagement between the Client and the Contractor or on the basis of legal obligations, the Contractor is able to process personal data from the Client and/or other persons related or being employed by the Client.
- Because of the optimisation of his services to the Client as well as being in contact with the Client and/or persons being employed by the Client while requesting information or services of the Contractor and third parties, the Contractor is able to process personal data.
- Processing of personal data by the Contractor, as part of the activities as mentioned in paragraphs 1 and 2, is taking place in accordance with the relevant laws and regulations with respect to protection of personal.
Article 9 FORCE MAJEURE
- Force majeure applies when there are unusual and unforeseeable circumstances beyond the control of the person pledging force majeure, the consequences of which would have been unavoidable despite all efforts to the contrary.
- In case the Contractor is not able to fulfill the obligations from the engagement, not to fulfill in time or not to fulfill in a correct way caused by force majeure, the obligations will be postponed until the moment the Contractor is able to fulfill his obligations again.
- The Client has the right, in case the situation applies as mentioned in paragraph 1, to terminate, in written, the engagement in full or partly and with immediate effect.
Article 10 FEES
- The Contractor has the right to postpone the execution of the activities prior to the start and in between of the activities till the moment the Client paid an amount in advance or provided a security to the Contractor for the activities to be executed.
- The fees of the Contractor are not depending on the results of the agreed engagement.
- In case a change of fees applies after the engagement has been signed, yet before the engagement has been executed in full, the Contractor is authorized to amend the fees accordingly, unless the Client and Contractor made a different arrangement on this.
- The fees of the Contractor, if required multiplied with advances or declarations from third parties, will be charged to the Client on a monthly, quarterly or yearly basis or after execution of the activities, unless the Client and Contractor made a different arrangement on this. VAT will be charged separately on all the amounts due between the Client and the Contractor.
Article 11 PAYMENT
- Payment by the Client of the amount due to the Contractor will be made within the given payment deadline, without any right to a deduction, discount or offset. In case (extra) activities have been executed on an hourly basis, payment should be made within the payment deadline, yet within 14 days after the invoice date and without any right to a deduction, discount or offset. Payment needs to be done in Dutch currency by making a transfer of the amount due to a bank account as provided by the Contractor. The day of the payment is the day that the amount due has been added to the bank account of the Contractor.
- In case the Client is not paying within the arranged payment deadline, or if no payment deadline is arranged and no payment has been made within 14 days after the date of the invoice, the Contractor is able to charge interest with immediate effect after 14 days after the date of the invoice until the day the payment has been made (based on article 6 paragraph 119 or if relevant paragraph 119a of the Dutch Civil Law act).
- In case the Client has not paid within the payment deadline as referred to in paragraph 1, the Client is due to the Contractor the extrajudicial expenses for an amount of 15% of the total amount due. In case the Contractor will have to make a higher amount of expenses to collect the amount due, the extra expenses will also be charged to the Client.
- In event of a mutual engagement and in case the executed activities are made on behalf of the mutual Clients, the Clients are jointly and severally liable for payment of the amount due, together with any expenses and interest as mentioned in paragraph 2 and 3.
- If the financial position or the payment behavior of the Client gives rise to in the opinion of the Contractor, the Contractor is authorized to require, without delay, (additional) security from the Client in any form as determined by the Contractor. If the Client fails to provide the required (additional) security, the Contractor is entitled, without prejudice to its other rights, to suspend further execution of the engagement, and each amount that the Client owes the Contractor for any reason are immediately due and payable.
Article 12 ADVERTISEMENTS
- A defect in the performance and/or the amount due needs to be communicated to the Contractor, yet within 14 days after the sending date of the documents or information to which the defect applies, or within 14 days after the discovery of the defect in the performance and/or amount due in case the Client can show that he was not, reasonably, been able to discover the defect in an earlier stage.
- A protest as mentioned in paragraph 1 does not postpone the payment of the amount due by the Client.
- In case that there will be not protested in time, the Client shall surrender all its rights and powers on the grounds of defective deliveries if it fails to submit a complaint.
- In case of a legitimate made protest, the Contractor have a choice between an amendment of the amount due, a free of charge amendment, renewing of the rejected activities or terminating the execution of the activities in full or partly against a restitution proportional of the amount due by the Client.
Article 13 DELIVERY TERMS
- If the Client is owing an advance payment to the Contractor or if the Client is required to provide the Contractor information and/or documents before execution of the activities, the delivery period, in within the activities needs to be executed, will start when the advanced payment have been received in full and/or the information/documents have been provided.
- Instalments of within the activities needs to be executed can just be considered as strict deadlines in case this is explicitly agreed.
- Unless execution is permanent impossible, the engagement cannot be terminated by the Client based on the failure to meet the deadline, unless the Contractor is also not able to meet the delivery deadline, in full or partly and as requested by the Client in written to the Contractor.
Article 14 LIABILITY
- The Contractor will execute his activities to his best effort and will take into account the greatest care. The Contractor is not liable for damage suffered by the Client and which is caused by the Client providing the Contractor incorrect or incomplete documents or information.
- The Client indemnify the Contractor for any claims from third parties for damage caused by the Client providing incorrect or incomplete documents or information to the Contractor, unless the Client can show that the damage is not related with any culpable acts or omit from the Client or caused by an intentional act or gross negligence from the Client.
- In case that the Client can show that he suffered damage caused by a mistake from the Contractor and which is attributable to the Contractor, each liability of the Contractor is limited to a maximum of three times the fee as invoiced to the Client, unless an intentional act or gross negligence applies to the Client. In the event that no specific engagement applies (the activities are on a continuous basis) the liability of the Contractor is limited to a maximum of three times the fee as invoiced to the Client in the year prior to the year of the dispute, unless an intentional act or gross negligence applies to the Contractor.
- The liability of the Contractor will in any event not be higher than the amount as paid out by a professional liability insurance of the Contractor in that particular case.
- The Contractor has the right, at any time, if and insofar, to undo the damage suffered by the Client.
- The Client is required to take measures in order to avoid any damages.
Article 15 TERMINATION
- The Client and the Contractor are able, at any time, to terminate the engagement. In case the engagement ends prior to the fulfilling of the engagement, a fee is due in proportion of the activities that have been fulfilled by the Contractor on behalf of the Client, and which should be in accordance with article 9 paragraph 2.
- Termination needs to be announced to the other party in written.
Article 16 RIGHT OF SUSPENSION
- The Contractor is authorized, after a carefully balance, to suspend the fulfillment of his obligations, including the issuance of the documents and all other properties of the Client or third parties until the moment that all claims that have been due have been paid by the Client.
- The provisions in the first paragraph do not apply with respect to properties or documents of the Client that have not been processed by the Contractor (yet).
Article 17 LIMITATION PERIOD
To the extent not otherwise provided for in the present general terms and conditions, rights to action and other powers of the customer by any virtue whatsoever vis á vis the contractor in connection with the execution of activities by the contractor, shall in any case extinguish one year after the moment the customer became aware or could in reason have become aware of the existence of said rights and powers.
Article 18 APPLICABLE LAW AND CHOICE OF FORUM
- All agreement to which these terms are applicable in their entirety or in part shall be governed by the law of the Netherlands.
- All disputes in connection with or resulting from agreements between the Client and the Contractor to which the present general terms and conditions apply, shall be settled by the competent Court in the court district within which the Contractor’s company is established.
Hoorn, 1 February 2019