Model General Terms and Conditions NBA 2017 © Filed with the Clerk of the District Court in Amsterdam on 19 June 2017 under number 39/2017.
Article 1. DEFINITIONS
The follow capitalised definitions shall have the following meanings in the context of these General Terms and Conditions:
- Professional regulations: the professional code of conduct to which all auditors are subject because of their registration in the NBA’s Register of Auditors.
- Records: all information and data made available by Client to Contractor; all data produced or collected by Contractor in context of the execution of the Assignment / Agreement; and all other information of any relevance to the execution of completion of the Assignment. The aforementioned information may or may not be stored on material or immaterial data carriers and may or may not be held by third parties.
- Employee: a natural person employed by or associated with the Contractor, whether or not on the basis of an employment contract.
- Assignment / Agreement: the assignment agreement, whereby the Contractor commits itself to the Client to perform certain Activities.
- Client: the natural person or legal person that has instructed the Contractor to perform the Assignment.
- Contractor: the office that accepted the Assignment. All Assignments shall be accepted and performed exclusively by the firm, not by or on behalf of an individual Employee, even if the Client has granted the Assignment expressly or tacitly with the aim of its performance by a particular Employee or particular Employees. Sections 7:404, 7:407 lid 2 en 7:409 BW are expressly excluded from application.
- Activities: all work and activities to be performed by the Contractor on behalf of the Client commissioned by the Activity and which have been accepted by the Contractor, as well as all work and activities arising from this for the Contractor.
Article 2. APPLICABILITY
- These general terms and conditions apply to all offers, quotations, Assignments, legal relationships and Agreements, by whatever name, in which the Contractor undertakes / will undertake to perform Activities for the Client, as well as all Activities arising from these Activities for the Contractor.
- Deviations from and additions to the Assignment and/or these General Terms and Conditions will only be valid if expressly agreed to in writing in, for example, a (written) Agreement) or (a further) order confirmation.
- If any condition in these General Terms and Conditions deviates from a condition in the order confirmation, the condition in the order confirmation shall apply with regards to the contradiction.
- These General Terms and Conditions also apply to any additional or follow-up Assignments.
- The applicability of the Client’s General Terms and Conditions is hereby explicitly rejected by the Contractor.
- These General Terms and Conditions may also be invoked by natural persons and legal persons that are directly or indirectly involved in any way possible, whether or not on the basis of an employment contract, in the provision of service to the Client by or on behalf of the Contractor.
Article 3. DATA OF THE CLIENT
- The Client is obliged to make all Records which the Contractor deems necessary for correct fulfilment of the granted Assignment available to the Contractor in the desired form, in the desired manner and in good time. The Contractor will determine what is meant by good time, desired form and desired manner.
- Client guarantees the accuracy, completeness and reliability of the Records it provides, even if they originate from third parties, unless the nature of the Assignment dictates otherwise.
- Client shall indemnify Contractor against any loss or damage arising from incorrect or incomplete Records.
- Client bears the risk and expense of any costs and hours incurred by the Contractor and any other loss or damage suffered by the Contractor due to the Client’s failure to provide the Records required for the execution of the Assignment, or to do so in a timely or good manner.
- In the event of electronic transmission of information – including (but not limited to) tax returns, annual accounts, reports – from (and on the instructions of) the Client by the Contractor to third parties, the Client will be regarded as the party signing and sending the information in question.
- Contractor is entitled to suspend the execution of the Assignments until the Client has met the obligations referred to in the first paragraph.
- At the Client’s first written request, the Contractor will return the original Records provided by the Client to the Client.
Article 4. EXECUTION OF THE ASSIGNMENT
- Contractor shall carry out the Assignment to the best of its ability, while recognising the applicable laws and (professional) regulations.
- Contractor determines the manner in which the Assignment will be carried out and by which Employee(s).
- Contractor is entitled to have the Activities performed by a third party appointed by the Contractor.
Article 5. (PROFESSIONAL) REGULATIONS
- Client shall fully cooperate with the obligations that arise for Contractor from the applicable (professional) regulations.
- The Contractor shall take appropriate measures to protect personal data and other confidential information originating from the Client. Contractor shall inform its employees and any engaged third parties about the confidential nature of the information. Processing personal data by the Contractor shall be in accordance with the applicable (inter)national laws and (professional) regulations regarding the protection of personal data.
- The Client is aware that in some cases Contractor is obliged on the basis of (inter)national laws or (professional) regulations to disclose confidential information of the Client. To the extent necessary, the Client hereby grants permission and cooperation for such disclosure, including (but not limited to) cases in which the Contractor: 1) is required to report unusual transactions, as described in legislation and (professional) regulations and which have become apparent during the execution of its carried oud or planned Assignment, to the authorities set up by the government for this purpose; 2) is required to report fraud in certain situations; 3) is required to conduct an investigation into the (identity of) the Client or the Client’s client.
- The Contractor excludes all liability for damage incurred for the Client as a result of the Contractor’s compliance with the laws and (professionals) regulations applicable to them. The parties will impose their obligations under this article on any third parties engaged by them.
Article 6. INTELLECTUAL PROPERTY
- Execution of the Assignment by the Contractor does not also imply the transfer of intellectual property rights vested in the Contractor. All intellectual property rights that arise during, or result from, the fulfilment of the Assignment belongs to the Contractor.
- The Client is explicitly forbidden to reproduce, disclose or exploit products which are subject to Contractor’s intellectual property rights, or products which are subject to intellectual property rights that Contractor has acquired rights of use for. This concerns for example (but not exclusively) computer programs, system designs, working methods, advice, (model) contracts, reports, templates, macros and other intellectual products.
- The Client is not permitted to make the products referred to in the second paragraph available to third parties without the Contractor’s prior written permission. This does not apply in the event that the Client wishes to obtain an expert opinion on the execution of the Assignment by the Contractor. The Client will, in that case, impose its obligations under this article under any third party that it engages.
Article 7. FORCE MAJEURE
- If the parties are unable to perform the obligations arising from the Agreement or are unable to do so in time or properly due to force majeure withing the meaning of article 6:75 of the Dutch Civil Code, these obligations will be suspended until the parties are able to perform them in the agreed manner.
- If the situation as referred to in the first paragraph arises, the parties are entitled to terminate the Agreement in whole or in part in writing with immediate effect, without there being any right to compensation.
- If, when the situation of force majeure arises, the Contractor has already partially fulfilled the obligations agreed upon, the Contractor will be entitled to invoice the performed Activities separately and prematurely, and the Client will be required to pay this invoice as if it were a separate transaction.
Article 8. HONORARIUM AND COSTS
- The Activities carried out by the Contractor will be charged to the Client on the basis of time spent and costs incurred, unless the parties explicitly agreed otherwise, such as payment of a fixed price. Payment of the honorarium is not dependent on the result of the Activities unless agreed otherwise in writing. Travel time and accommodation costs incurred for the purpose of the Activities will be charged separately.
- In addition to the honorarium, the expenses incurred by the Contractor and the expense claims submitted by third parties engaged by the Contractor will be charged to the Client.
- The Contractor is entitled to ask the Client for an advance payment. Failure to pay the advance (on time) may be a reason for the Contractor to (temporarily) suspend the Activities.
- If the honoraria or prices change after the Agreement’s conclusion, but before the Assignment has been fully executed, the Contractor is entitled to adjust the agreed rate, unless explicitly agreed otherwise.
- If required by law, turnover tax will be charged separately on all amounts owed by the Client to the Contractor.
Article 9. PAYMENT
- Unless agreed otherwise, the Client must pay the amounts owed to the Contractor within 30 days of the invoice date, without being entitled to any deduction, discount, suspension or settlement. The day of payment is the day on which the amount due is credited to Contractor’s account.
- If Client has not paid within the term specified in the first paragraph, Client is in default by operation of law and Contractor is entitled to charge statutory (commercial) interest from that time onwards.
- If Client has not paid within the term specified in the first paragraph, Client shall be obliged to reimburse all actual judicial and extrajudicial (collection) costs incurred by Contractor. Reimbursement of the costs incurred is not limited to the assessment of costs awarded by the court.
- In the event of a jointly given Assignment, the Clients are jointly and severally liable for payment of the invoice amount, the interest and costs.
- If, in the opinion of the Contractor, the Client’s financial position or payment record gives cause to do so, or if the Client fails to pay an advance payment or invoice within the specified payment term, the Contractor is entitled to require the Client to immediately furnish (additional) security in a form to be determined by the Contractor. If the Client fails to furnish the requested security, then the Contractor is entitled, without prejudice to its other rights, to immediately suspend the further fulfilment of the Agreement and all the Client owes the Contractor for whatever reason will be immediately due.
Article 10. TERMS
- If the Client and the Contractor agree on a period/date within which the Assignment must be completed and the Client fails to: (a) make an advance payment – if agreed or (b) provide the necessary Records in time, in full, in the desired form and in the desired manner, the Client and the Contractor will consult about a new term/date within which the Assignment must be completed.
- Terms by which the Activities must be completed are only to be regarded as firm dates if this has been explicitly agreed in writing between the Client and the Contractor.
Article 11. ACCOUNTABILITY AND INDEMNIFICATION
- The Contractor is not accountable for any loss or damage sustained by the Client due to the fact that the Client failed to provide Records or provided Records that were inaccurate or incomplete, or failed to provide Records on time. This also includes the situation in which the Contractor is unable to file annual accounts with the Chamber of Commerce within the statutory period due to an act or omission (on the part) of the Client.
- The Client shall not be accountable for indirect damage, including lost profits, lost savings, damage due to business interruption and other consequential or indirect damage resulting from the failure of the Contractor to perform, to perform on time or to perform properly.
- Contractor’s accountability is limited to reimbursement of the direct damage resulting from an (interconnected series of) attributable failure(s) in the execution of the Assignment. This accountability for direct loss is limited to the amount paid out in the relevant case by the Contractor’s liability insurer, plus any excess to be borne by the Contractor under the insurance policy. Direct damage is understood to mean – among other things – the reasonable costs incurred to establish the cause and scope of the damage; the reasonable costs incurred to have Contractor’s performance satisfy the Agreement and the reasonable costs incurred to prevent or limit damage.
- If, for whatever reason, the liability insurer makes no payment as referred to in paragraph 3 of this article, the Contractor’s liability shall be limited to the amount of the fee charged for the execution of the Assignment. If the Assignment involves a continuing performance contract with a term of more than one (1) year, the amount referred to above will be set at once the amount of the fee charged to the Client in the twelve months preceding the occurrence of the damage. In no event shall the total compensation for damage on the ground of this paragraph exceed € 300.000,- per attributable failure, unless – in view of the scope of the Assignment or the risks involved in the Assignment – the parties see a reason to deviate from this maximum when entering into the agreement.
- A related series of accountable failures counts as one (1) accountable failure.
- The limitations of accountability included in this article do not apply if and insofar as there is intent or deliberate recklessness on the part of the Contractor or its executive management.
- The Client is obliged to take damage-reducing measures. The Contractor is entitled to undo or limit the damage by repairing or improving the performed Activities.
- The Client shall indemnify the Contractor against third-party claims for damage caused by the fact that the Client failed to provide Records or provided Records that were inaccurate or incomplete.
- The Client shall indemnify the Contractor against claims from third parties (including Contractor’s employees and third parties engaged by the Contractor) who have suffered damage in the context of the fulfilment of the Assignment, which damage is the result of the Client’s acts or omissions or of unsafe situations in the Client’s company or organisation.
- The provisions of paragraphs 1 to 9 of this article relate to both the contractual and non-contractual accountability of the Contractor towards the Client.
Article 12. TERMINATION
- The Client and the Contractor may terminate the Agreement (prematurely) at any time without observing a notice period by means of a written notification to the other party. If the Agreement ends before the Assignment has been completed, the Client will owe a fee based on the hours spent by the Contractor on the Activities performed on behalf of the Client.
- If the Client proceeds with (premature) termination, the Contractor is entitled to compensation for the loss of capacity utilisation on his part which can be demonstrated to be reasonable, to reimbursement of additional costs already incurred by the Contractor, and to reimbursement of costs arising from any cancellation of called in third parties (such as – among other things – any costs related to subcontracting).
- In the event that the Contractor proceeds to terminate the Agreement (prematurely), the Client is entitled to cooperation from the Contractor in transferring Activities to third parties, unless intent or deliberate recklessness on part of the Client is involved which forces the Contractor to terminate the Agreement. The right to cooperation as stipulated in this paragraph is subject to the condition that the Client has paid all underlying outstanding advances or invoices.
Article 13. RIGHT OF SUSPENSION
- After carefully weighing up the interests involved, the Contractor is entitled to suspend the fulfilment of all its obligations, including the issuance of Records or other items to the Client or third parties, until all its due and payable claims against the Client have been settled in full.
- The first paragraph does not apply to Records of the Client that have not been processed (yet) by the Contractor.
Article 14. LIMITATION PERIOD
Unless stipulated otherwise in these General Terms and Conditions, rights of action and other powers of the Client on whatever account towards the Contractor relating to the performance of Activities by the Contractor lapse one year after the Client became aware or could reasonably become aware of the existence of these rights and powers. This period does not relate to the possibility of submitting a complaint to the body/bodies designated to handle complaints and/or the Dispute Adjudication Board.
Article 15. ELECTRONIC COMMUNICATION AND ELECTRONIC FILING OF ANNUAL ACCOUNTS
- During the execution of the Assignment, the Client and the Contractor may communicate with each other by electronic means and/or make use of electronic storage (such as cloud applications). Unless agreed otherwise in writing, the parties may assume that the sending of correctly addressed faxes, emails (including emails sent via the internet) and voicemail messages will be mutually accepted, regardless of whether these contain confidential information or records relating to the Assignment. The same applies to other means of communication used or accepted by the other party.
- The Client and the Contractor are not accountable towards each other for damage that may arise from one or both of them as a result of the use of electronic means of communication, networks, applications, electronic storage or other systems, including – but not limited to – damage resulting from non-delivery or delayed delivery of electronic communications, omissions distortion, interception or manipulation of electronic communications by third parties or by software/hardware used for transmitting, receiving or processing of electronic communications, transmitting of viruses and non-functioning or malfunctioning of the telecommunications network or other resources required for electronic communications, except in so far as the damage is the result of wilful intent or gross negligence. The aforementioned also applies to the use that Contractor makes thereof in its contacts with third parties.
- In addition to the previous paragraph, the Contractor accepts no accountability for any damage caused by or in connection with the electronic transmission of (electronic) annual accounts and the digital filing thereof with the Chamber of Commerce.
- Both the Client and the Contractor shall do or omit to do everything that may reasonably be expected of each of them in order the prevent the above-mentioned risks from occurring.
- The data extracts from the sender’s computer systems are binding evidence for (the contents of) the electronic communication sent by the sender until the recipient has provided proof stating the contrary.
- The stipulations of Article 11 shall apply accordingly.
Article 16. OTHER STIPULATIONS
- If the Contractor performs Activities at the Client’s location, the Client guarantees a suitable workplace that meets the statutory occupational health and safety (ARBO) standards and other applicable regulations concerning working conditions. The Client must ensure that the Contractor is provided with office space and other facilities that the Contractor deems necessary or useful for the fulfilment of the Agreement and that meet all the relevant (statutory) requirements. With regards to the (computer) facilities made available, the Client is obliged to ensure continuity by means of adequate back-up, security and virus control procedures, among other things. The Contractor will apply virus control procedures when using the Client’s facilities.
- The Client will not hire or approach any Employees involved in performing the Activities in order to be employed, temporarily or permanently, directly or indirectly, by the Client to perform Activities, directly or indirectly, for the Client, as an employee or otherwise, during the term of the Agreement or any extension thereof and for 12 months afterwards.
- These General Terms and Conditions have been drawn up in Dutch, English and German. In the event of any difference or inconsistency between the English, German and the Dutch text, the Dutch text shall be binding.
- Stipulations in the Assignment that explicitly or by their nature should remain in force after the expiry or termination of the Assignment shall remain in force after the expiry or termination, including articles 6, 8, 9, 11, 16.2 and 17.
Article 17. APPLICABLE LAW AND CHOICE OF FORUM
- The Agreement is governed by Dutch law.
- All disputes shall be settled by the competent court in the district in which the Contractor has its registered office.
- The stipulations of paragraphs 1 and 2 of this article are without prejudice to the Client’s option of submitting a dispute to the Dispute Adjudication Board and/or complaint to the Contractor itself, the Chamber of Accountants (disciplinary law) or the Complaint Committee (complaints law).
Article 18. REPAIR CLAUSE NULLIFICATIONS
- If any stipulation in these General Terms and Conditions or in the underlying Assignment/Agreement should be entirely or partially nulled and/or invalid and/or unenforceable as a result any statutory regulation, judicial decision or otherwise, this will not affect the validity of all the other stipulations of these General Terms and Conditions or the underlying Assignment/Agreement.
- If any stipulation in the Assignment or part of the Assignment cannot be invoked as a matter of law, the remainder of the Assignment shall remain in full force and effect, on the understanding that the stipulation of the part that cannot be invoked shall be deemed to have been amended in such a way as to make it possible to invoke at, whereby the intention of the parties with regard to the original stipulation shall be maintained as far as possible.
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