GENERAL TERMS AND CONDITIONS
Article 1 – General
1.1 The terms set forth hereunder shall have the following meanings:
Client: the opposite party of Contractor with regard to a contract within the meaning of Article 2.1;
Contractor: KDPS B.V., having its registered office at Rotterdam;
1.2 KDPS B.V. is a close limited liability company organised under the laws of the Netherlands (“Besloten Vennootschap met beperkte aansprakelijkheid”) also acting under the name of Keijzer Drijer Priester & Van der Stoel;
1.3 All assignments shall be accepted and performed exclusively by Contractor, subject to the exclusion of Sections 404 and 407 (2), Book 7, of the Netherlands Civil Code;
1.4 The clauses in these general terms and conditions have also been stipulated on behalf of (i) partners of Contractor; (ii) if and when these partners are legal entities, also on behalf of their directors; (iii) all persons employed by or working for Contractor.
Article 2 – Applicability
2.1 These general terms and conditions shall apply to (i) all contracts of assignment under which Contractor is obliged to perform activities; (ii) all contracts arising therefrom and/or relating thereto between Client and Contractor or their respective legal successors; and (iii) all offers and/or proposals made by Contractor.
2.2 Clauses which depart from these terms and conditions shall only apply if and to the
extent expressly confirmed in writing by Contractor to Client.
2.3 If any clause in these general terms and conditions or in the contract is or is held to be invalid, the remainder of the contract shall remain in force to the extent possible and the invalid clause shall be replaced forthwith in consultation between the parties by a clause which reflects the object of the original clause as closely as possible.
Article 3 – Data and information
3.1 Contractor shall only be obliged to perform or continue to perform the assignment after Client has supplied Contractor with all requested data and information in the indicated form and manner. Any additional costs incurred due to the failure of Client to supply the requested data or information promptly and properly shall be borne by Client.
3.2 Client shall inform Contractor forthwith of any facts and circumstances which may be of importance with regard to the performance of the assignment.
3.3 Client warrants the accuracy, completeness and reliability of the data and information supplied by it or on its behalf to Contractor.
Article 4 – Performance of the assignment
4.1 Contractor shall determine how and by which person(s) the assignment shall be performed, taking into account any wishes expressed by Client as much as possible.
4.2 Contractor shall carry out the work to the best of its ability and with due professional care. Contractor does not however guarantee the achievement of any intended results.
4.3 The assignment shall be performed subject to the rules of professional conduct (“Reglement Beroepsuitoefening”) and the disciplinary rules (“Reglement Tuchtzaken”) of the Dutch Association of Tax Advisers (“Nederlandse Orde van Belastingadviseurs”). A copy of these rules will be sent to Client on request. Client shall respect any and all obligations arising out of such rules for Contractor and all persons employed by or working with Contractor.
4.4 Dates by which work must be completed shall only be regarded as deadlines whose non-observance constitutes a default (“fatale termijnen”) if expressly agreed in writing.
4.5 Client shall not be entitled to rescind the contract if and when an agreed deadline is exceeded, unless (i) Contractor also fails to perform its contractual obligations within a reasonable period notified to it in writing after the original date of completion; (ii) it is evident that the performance of the contract will be permanently impossible.
Article 5 – Intellectual property rights
5.1 Contractor shall be entitled to any and all intellectual property rights developed or used by it during the performance of the assignment, including advice, opinions, working methods, (model) contracts, systems, system designs and computer programs, save insofar as third parties are entitled to such intellectual property rights.
5.2 Without prior written permission by Contractor, Client shall not reproduce, disclose or exploit such intellectual property or a recording thereof on any data carrier, either alone or in conjunction with or through third parties, without prejudice to the provisions of Article 6.3.
Article 6 – Confidentiality
6.1 Contractor shall not disclose data and information supplied by or on behalf of Client to third parties who are not involved in the performance of the assignment. This obligation shall not apply insofar as Contractor has a legal or professional obligation to disclose such information or if Client has released Contractor from its duty of confidentiality.
6.2 In the event Contractor is acting on behalf of itself in disciplinary, civil or criminal proceedings, it shall be entitled to use the data and information supplied by or on behalf of Client as well as other data and information which have come to Contractor’s notice in the course of the assignment, provided such use may be of interest according to the reasonable judgment of Contractor.
6.3 Without prior written permission by Contractor, Client shall not disclose or make available to third parties in any other way advice, opinions or other statements made by Contractor, whether or not in writing, unless:
(i) such action arises directly from the contract;
(ii) effected to obtain an expert opinion on the work performed by Contractor;
(iii) Client has a legal or disciplinary obligation to disclose data concerned; or
(iv) Client is acting on behalf of itself in disciplinary, civil or criminal proceedings.
Article 7 – Fee
Client shall pay to Contractor a fee and reimburse costs incurred in accordance with Contractor’s usual rates, methods of calculation and working processes.
Article 8 – Payments
8.1 Payment shall be made in Euro’s by deposit or transfer to the bank or giro account stated on the fee note, without any deduction, discount or set-off, within fourteen (14) days of the fee note date, failing which Client shall be in default.
8.2 All extra-judicial costs incurred by Contractor in connection with the collection of any amounts owed by Client shall be borne by Client.
8.3 All costs incurred by Contractor in connection with legal proceedings against Client shall be borne by Client, including any and all costs exceeding the legal costs awarded, unless Contractor is ordered to pay the legal costs as losing party.
8.4 Contractor reserves the right to request Client to provide for full or partial payment in advance and/or to provide security – even during the performance of an assignment, if the financial position or the payment behavior of Client in the opinion of Contractor so warrants- failing which Contractor shall be entitled to suspend the performance of its obligations.
Article 9 – Complaints
9.1 Contractor must be informed in writing of any complaints concerning work performed or fees charged within thirty (30) days of the date of dispatch of the documents or information on which such complaints are based or, in case Client shall prove that it could not reasonably have discovered the shortcoming earlier, within thirty (30) days after discovery thereof, failing which Client shall forfeit any and all claims relating thereto.
9.2 A complaint shall not entitle Client to suspend its payment obligations, unless Contractor has informed Client that it considers the complaint to be justified.
9.3 In the event of a justified complaint Contractor shall have the right, at its own discretion, either to adapt the fees charged, rectify the shortcoming free of charge, repeat the assignment concerned, or cancel the performance of the assignment partly or in full against a proportional refund of fees paid by Client.
Article 10 – Liability
10.1 Contractor shall be liable to Client for any shortcoming in the performance of the assignment insofar as such shortcoming implies a failure to exercise the due care and expertise which may be expected with regard to the performance of the assignment. However, Contractor shall in no event be liable for:
– damage suffered by Client or third parties resulting from inaccurate or incomplete data or information supplied by Client to Contractor or from other act or omission by Client;
– damage suffered by Client or third parties as a result of acts or omissions of auxiliary persons (“hulppersonen”) engaged by Contractor (not including Contractor’s employees), even if such persons are employed by any organisation affiliated with Contractor;
– indirect, special or consequential damages suffered by Client or third parties.
10.2 The liability exceptions set forth in Article 10.1 shall not apply to the extent the ` damage is caused by gross negligence or willful misconduct on the part of Contractor.
10.3 Any liability of Contractor shall be limited to the amount that is paid out by their liability insurers in respect of that particular case, increased by the amount of the own risk which is not for the risk of the insurers according to the policy conditions. If and to the extent that, for whatever reason, no such payment is made by the liability insurers, any liability shall be limited to three times the amount as paid by the Client to Contractor in the concerning case and in the concerning calendar year, up to a maximum of € 500.000,-. The restriction or exclusion of liability as meant in this article does not apply in case the damages are a consequence of conscious reckless or intentional default of Contractor.
10.4 Any and all claims relating to compensation of damages suffered shall be submitted to Contractor no later than twelve months after Client has discovered or could reasonably have discovered such damage, failing which the right to claim compensation shall lapse.
10.5 Client shall hold harmless and indemnify Contractor against all claims from third parties – including but not limited to shareholders, directors, supervisory directors and employees of Client as well as affiliated legal entities and companies and third parties involved in the organisation of Client- arising from or in connection with the work performed by Contractor for Client, unless such claims are due to gross negligence or willful misconduct on the part of Contractor.
Article 11 – Limitation period
Unless these general terms and conditions provide otherwise, any and all claims of Client against Contractor in connection with the performance of the assignment by it, regardless of their nature, shall expire one year after the date Client has become aware or could reasonably have been aware of the existence of such claim.
Article 12 – Choice of law, disputes
12.1 All contracts between Client and Contractor shall be governed exclusively by Dutch law.
12.2 Disputes which do not fall within the jurisdiction of the subdistrict court (“Kantongerecht”) shall be submitted to the competent court in the place in which the registered office of Contractor is situated.
12.3 Notwithstanding the provisions of Article 12.2, Client and Contractor may choose a different manner of dispute settlement.