GENERAL
CONDITIONS
Model NBA 2017 General Terms and Conditions © Filed with the Registry of the District Court in Amsterdam on June 19, 2017 under number 39/2017.
Article 1. DEFINITIONS
For the purposes of these general pre=values, the following capitalized definitions have the following meanings:
a. Professional regulations: the professional and conduct rules to which all auditors are subject due to their registration in the NBA's register of auditors;
b. Documents: all information or data provided by the Client to the Contractor; all data produced or collected by the Contractor in the context of the execution of the Assignment/Agreement; and all other information of any relevance to the execution or completion of the Assignment. The aforementioned information may or may not be stored on (im) material data carriers and may or may not be stored with third parties;
c. Employee: a natural person working at or associated with the Contractor, whether or not under an employment contract;
d. Order/Agreement: the assignment agreement, where the Contractor undertakes to perform certain Activities towards the Client;
e. Client: the natural person or legal person who has given the Contractor the Order to perform Work;
f. Contractor: the office that has accepted the Assignment. All Orders are accepted and executed exclusively by the office, not by or on behalf of an individual Employee, even if the Client has expressly or implicitly granted the Assignment for the purpose of their execution by a specific Employee or certain Employees. Articles 7:404, 7:407 paragraph 2 and 7:409 of the Dutch Civil Code are expressly excluded;
g. Activities: all activities and transactions to be carried out by the Contractor on behalf of the Client for which the Order has been given and that have been accepted by the Contractor, as well as all activities and transactions resulting therefrom for the Contractor.
Article 2. APPLICABILITY
1. These general terms and conditions apply to: all offers, offers, Orders, legal relationships and Agreements, however named, where the Contractor undertakes or will undertake to perform Work for the Client, as well as to all Activities resulting therefrom for the Contractor.
2. Deviations from and additions to the Assignment and/or these general terms and conditions are only valid if they have been expressly agreed in writing in, for example, a (written) Agreement or (further) order confirmation.
3. If any condition in these general terms and conditions differs from a condition in the order confirmation, the condition included in the order confirmation applies with regard to the contradiction.
4. These general terms and conditions also apply to any additional or follow-up orders.
5. The Contractor hereby expressly rejects the applicability of the Client's general terms and conditions.
6. These general terms and conditions can also be invoked by natural and legal persons who are directly or indirectly involved in any way, whether or not under an employment agreement, in the services provided to the Client by or on behalf of the Contractor.
Article 3. CLIENT INFORMATION
1. The Client is obliged to provide the Contractor with all Documents that the Contractor, in its opinion, needs for the correct execution of the Assignment granted in the desired form, in the desired manner and in a timely manner. The contractor decides what should be understood by timely, the desired form and the desired way.
2. The Client guarantees the accuracy, completeness and reliability of the Documents provided by him, even if they come from third parties, unless the nature of the Assignment dictates otherwise.
3. The Client indemnifies the Contractor against damage resulting from incorrect or incomplete Documents.
4. The additional costs and extra hours incurred by the Contractor, as well as other damage, are at the Client's expense and risk due to the Client's failure, timely or improper provision of Documents necessary for the performance of the Activities.
5. In the event of electronic transmission of information - including (but not limited to) tax returns, financial statements, reports - from (and on behalf of) Client to third parties, Client is regarded as the party that signs and transmits the relevant information.
6. The Contractor has the right to suspend the execution of the Assignment until the Client has fulfilled the obligations set out in paragraph 1.
7. At the Client's first written request, the Contractor will return the original Documents provided by the Client to the Client.
Article 4. EXECUTION OF THE ORDER
1. Contractor performs the Assignment to the best of its ability and in compliance with applicable laws and (Professional) regulations.
2. Contractor determines how the Assignment is executed and by which Employee (s).
3. The Contractor has the right to have Work carried out by a third party to be appointed by the Contractor.
Article 5. (PROFESSIONAL) REGULATIONS
1. The Client fully cooperates with the obligations that arise for the Contractor from the applicable (Professional) regulations.
2. Contractor takes appropriate measures to protect Client's personal data and other confidential information. Contractor will inform Employees and third parties to be engaged about the confidential nature of the information. Processing of personal data by the Contractor takes place in accordance with the applicable (inter) national laws and (Professional) regulations in the field of personal data protection.
3. The Client is aware that, in some cases, Contractor is obliged to disclose Client's confidential information on the basis of (inter) national laws or (Professional) regulations. To the extent necessary, Client hereby gives its consent and cooperation to such disclosure, including (but not limited to) cases where Contractor:
a. described in laws and (Professional) regulations and must report unusual transactions that have become known, carried out or intended during the performance of its Activities to the authorities established by the government;
b. must report fraud in certain situations;
c. is obliged to investigate the (identity of) Client or his client.
4. The Contractor excludes any liability for damage that occurs to the Client as a result of the Contractor complying with the laws and (Professional) regulations applicable to him.
5. Parties will impose their obligations under this article on third parties they engage.
Article 6. INTELLECTUAL PROPERTY
1. The execution of the Assignment by the Contractor does not also include the transfer of intellectual property rights owned by the Contractor. All intellectual property rights that arise during, or arise from, the execution of the Assignment belong to the Contractor.
2. The Client is expressly prohibited from reproducing, disclosing or exploiting the products that are subject to the Contractor's intellectual property rights, or products subject to intellectual property rights with regard to the use of which the Contractor has acquired user rights. This includes, for example (but not limited to): computer programs, system designs, working methods, advice, (model) contracts, reports, templates, macros and other mental products.
3. The Client is not allowed to hand over the products mentioned in paragraph 2 to third parties without the Contractor's prior written consent. This does not apply if the Client wishes to obtain an expert opinion on the performance of the Activities by the Contractor. In that case, the Client will impose its obligations under this article on the third parties engaged by it.
Article 7. FORCE MAJEURE
1. If the parties are unable to fulfill the obligations under the Agreement, not timely or properly as a result of force majeure within the meaning of art. 6:75 of the Dutch Civil Code, those obligations will be suspended until the parties are still able to fulfill them in the agreed manner.
2. If the situation referred to in paragraph 1 occurs, the parties have the right to terminate the Agreement in whole or in part and with immediate effect in writing, without the right to any compensation.
3. If the Contractor has already partially fulfilled the agreed obligations upon the occurrence of the force majeure, the Contractor is entitled to invoice the Work performed separately and prematurely and the Client must pay this invoice as if it concerned a separate transaction.
Article 8. FEES AND COSTS
1. 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 expressly agree otherwise, such as payment of a fixed price. Payment of the fee does not depend on the result of the Activities unless otherwise agreed in writing. Travel time and accommodation costs for the Activities are charged separately.
2. In addition to the fee, the expenses incurred by the Contractor and the invoices of third parties engaged by the Contractor will be charged to the Client.
3. The Contractor has the right to request payment of an advance from the Client. Failure to (timely) pay the advance may be a reason for the Contractor to (temporarily) suspend the Activities.
4. If fees or prices change after the conclusion of the Agreement, but before the Assignment is fully executed, the Contractor has the right to adjust the agreed rate, unless otherwise expressly agreed.
5. If this is required by law, the turnover tax will be charged separately on all amounts owed by the Client to the Contractor.
Article 9. PAYMENT
1. Payment by the Client of the amounts due to the Contractor must, without the Client being entitled to any deduction, discount, suspension or set-off, be made within 30 days of the invoice date, unless otherwise agreed. The day of payment is the day of crediting the amount due to the Contractor's account.
2. If the Client has not paid within the period specified in paragraph 1, the Client is in default by operation of law and the Contractor is entitled to charge the statutory (commercial) interest from that moment on.
3. If the Client has not paid within the period specified in paragraph 1, the Client is obliged to reimburse all judicial and extrajudicial (collection) costs actually incurred by the Contractor. The reimbursement of the costs incurred is not limited to any cost order determined by the court.
4. In the event of an Order given jointly, Clients are jointly and severally liable for payment of the invoice amount, the interest (s) and costs due.
5. If, in the opinion of the Contractor, the financial position or payment behavior of the Client gives reason to do so, or if the Client fails to pay an advance or an invoice within the specified payment period, the Contractor is entitled to require the Client to immediately provide (additional) security in a form to be determined by the Contractor. If the Client fails to provide the requested security, the Contractor is entitled, without prejudice to its other rights, to immediately suspend further execution of the Agreement and all that the Client owes the Contractor for whatever reason is immediately due and payable.
Article 10. TIME LIMITS
1. If a term/date has been agreed between Client and Contractor within which the Assignment must be executed and Client fails to:
(a) to make a prepayment - if agreed - or
(b) If the necessary Documents are made available in a timely, complete, manner and in the desired form, the Client and Contractor will consult on a new term/date within which the Assignment should be executed.
2. Time limits within which the Activities must be completed are only considered a deadline if this has been expressly agreed (in writing) between the Client and Contractor in so many words.
Article 11. LIABILITY AND INDEMNITIES
1. The Contractor is not liable for damage suffered by the Client that occurs because the Client has not provided the Contractor with any, incorrect or incomplete Documents, or because they have not been delivered in time. This also includes the situation that the Contractor is unable to file the financial statements with the Chamber of Commerce within the statutory period as a result of an act or omission (on the part of) the Client.
2. The Contractor is not liable for indirect damage, including: lost profit, missed savings, damage due to business interruption and other consequential or indirect damage resulting from the Contractor's failure, late or improper performance.
3. The Contractor's liability is limited to compensation for direct damage that is the direct result of a (related series of) attributable shortcoming (s) in the execution of the Assignment. This liability for direct damage is limited to the amount that, according to the Contractor's liability insurer, will be paid out for the relevant case, plus any deductible to be borne by the Contractor under the insurance. Direct damage includes - among other things - the reasonable costs incurred to determine the cause and extent of the damage; the reasonable costs incurred to make the Contractor's performance comply with the Agreement and the reasonable costs incurred to prevent or limit the damage.
4. If, for whatever reason, the liability insurer does not pay out - as referred to in paragraph 3 of this article - the Contractor's liability is limited to the amount of the fee charged for the execution of the Assignment. If the Assignment concerns a continuing performance agreement with a term of more than one (1) year, the amount referred to above will be set at once the amount of the fee that was charged to the Client in the twelve months prior to the occurrence of the damage. Under no circumstances will the total compensation for the damage under this article paragraph exceed €300,000 per attributable shortcoming, unless the parties - given the size of the Assignment or the risks associated with the Assignment - see reason to deviate from this maximum when entering into the Agreement.
5. A coherent series of attributable deficiencies counts as one (1) attributable shortcoming.
6. The limitations of liability 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 management.
7. The client is obliged to take damage control measures. The Contractor has the right to undo or limit the damage by repairing or improving the Work carried out.
8. The Client indemnifies the Contractor against third-party claims for damage caused by the Client not providing the Contractor with any, incorrect or incomplete Documents.
9. The Client indemnifies the Contractor against claims from third parties (including Contractor's employees and third parties engaged by Contractor) who suffer damage in connection with the execution of the Assignment, which damage is the result of Client's acts or omissions or unsafe situations in its company or organization.
10. The provisions of paragraphs 1 to 9 of this article relate to both Contractor's contractual and non-contractual liability towards the Client.
Article 12. TERMINATION
1. Client and Contractor can terminate the Agreement immediately (prematurely) at any time without giving notice by giving written notice to the other party. If the Agreement ends before the Assignment is completed, the Client owes the fee in accordance with the hours specified by the Contractor for Work performed on behalf of the Client.
2. If the Client cancels (prematurely), the Contractor is entitled to compensation for the loss of occupancy caused and plausible on its part, to reimburse additional costs that the Contractor has already incurred, and to reimburse costs resulting from any cancellation of engaged third parties (such as - among others - any costs related to subcontracting).
3. If the Contractor cancels (interim), the Client has the right to cooperate with the Contractor in transferring Work to third parties, unless there is intent or deliberate recklessness on the part of the Client, forcing the Contractor to terminate. The condition for the right to cooperation as set out in this paragraph is that the Client has paid all underlying outstanding advances or all invoices.
Article 13. RIGHT OF SUSPENSION
1. After careful consideration of interests, the Contractor is authorized to suspend the fulfillment of all its obligations, including the delivery of Documents or other items to the Client or third parties, until all due and payable claims against the Client have been paid in full.
2. The first paragraph does not apply to Client Documents that have not (yet) been processed by the Contractor.
Article 14. EXPIRY PERIOD
Unless otherwise provided in these general terms and conditions, the Client's rights of action and other powers for whatever reason against the Contractor in connection with the performance of Work by the Contractor expire, in any case after one year after the Client became aware or could reasonably be aware of the existence of these rights and powers. This period does not include the possibility to file a complaint with the appropriate complaint-handling authority (s) and/or the Disputes Board.
Article 15. ELECTRONIC COMMUNICATION AND ELECTRONIC FILING OF FINANCIAL STATEMENTS
1. During the execution of the Assignment, Client and Contractor can communicate with each other by electronic means and/or make use of electronic storage (such as cloud applications). Unless otherwise agreed in writing, the parties may assume that the transmission of properly addressed faxes, e-mails (including e-mails sent via the Internet) and voicemail messages, regardless of whether they contain confidential information or documents relating to the Engagement, will be mutually accepted. The same applies to other means of communication used or accepted by the other party.
2. Client and Contractor are not liable to each other for damage that may arise from one or each 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 delay in delivery of electronic communications, omissions, distortion, interception or manipulation of electronic communications by third parties or by software/equipment used for transmission, reception or processing of electronic communications, transmission of viruses and the failure or malfunctioning of the telecommunications network or other means of electronic communication, except insofar as the damage is the result of intent or gross negligence. The foregoing also applies to the use that the Contractor makes of this in its contacts with third parties.
3. In addition to the previous paragraph, the Contractor accepts no liability for any damage caused by or in connection with sending (electronic) financial statements electronically and filing them digitally with the Chamber of Commerce.
4. Both Client and Contractor will do or fail to do anything reasonably expected of each of them to prevent the occurrence of the above risks.
5. The data extracts from the sender's computer systems provide compelling evidence of (the content of) the electronic communication sent by the sender until the recipient provides proof to the contrary.
6. The provisions of Article 11 shall apply accordingly.
Article 16. OTHER PROVISIONS
1. If the Contractor performs Work at the Client's location, the Client guarantees a suitable workplace that meets the statutory health and safety standards and other applicable regulations with regard to working conditions. In that case, the Client must ensure that the Contractor is provided with office space and other facilities that, in the Contractor's opinion, are necessary or useful to execute the Agreement and that meet all (legal) requirements. With regard to (computer) facilities made available, the Client is obliged to ensure continuity, including through adequate backup, security and virus control procedures. Contractor will apply virus control procedures when Contractor makes use of Client's facilities.
2. The Client will not hire or approach any Employees involved in the performance of the Activities to hire the Client, whether temporarily, directly or indirectly, or to work directly or indirectly for the Client, whether or not employed, during the term of the Agreement or any extension thereof and during the 12 months thereafter.
3. These general terms and conditions have been drawn up in both Dutch and English languages. In the event of a difference or discrepancy between the English and Dutch texts, the Dutch text is binding.
4. Provisions in the Engagement that, expressly or by their nature, must remain in force after the end or termination of the Assignment remain in force after expiration or termination, including articles 6, 8, 9, 11, 16 paragraphs 2 and 17.
Article 17. APPLICABLE LAW AND CHOICE OF FORUM
1. The Agreement is governed by Dutch law.
2. All disputes will be settled by the competent court in the district where Contractor is located.
3. The provisions of paragraphs 1 and 2 of this article do not affect the Client's ability to submit a dispute to the Disputes Board and/or file a complaint with the Contractor itself, the Court of Auditors (disciplinary law) or the Complaints Committee (complaint law).
Article 18. REPAIR CLAUSE NULLITIES
1. If any provision of these general terms and conditions or the underlying Order/Agreement should be wholly or partly void and/or invalid and/or unenforceable, as a result of any legal regulation, court order or otherwise, this will not have any effect on the validity of all other provisions of these general terms and conditions or the underlying
Assignment/Agreement.
2. If any provision in the Assignment or part of the Assignment cannot be invoked by law, the remaining part of the Assignment remains in full force, provided that the provision on the part that cannot be invoked should be deemed to have been amended in such a way that it is possible to invoke it, maintaining the intention of the parties with regard to the original provision or the original part as much as possible.
Article 1. DEFINITIONS
For the purposes of these general pre=values, the following capitalized definitions have the following meanings:
a. Professional regulations: the professional and conduct rules to which all auditors are subject due to their registration in the NBA's register of auditors;
b. Documents: all information or data provided by the Client to the Contractor; all data produced or collected by the Contractor in the context of the execution of the Assignment/Agreement; and all other information of any relevance to the execution or completion of the Assignment. The aforementioned information may or may not be stored on (im) material data carriers and may or may not be stored with third parties;
c. Employee: a natural person working at or associated with the Contractor, whether or not under an employment contract;
d. Order/Agreement: the assignment agreement, where the Contractor undertakes to perform certain Activities towards the Client;
e. Client: the natural person or legal person who has given the Contractor the Order to perform Work;
f. Contractor: the office that has accepted the Assignment. All Orders are accepted and executed exclusively by the office, not by or on behalf of an individual Employee, even if the Client has expressly or implicitly granted the Assignment for the purpose of their execution by a specific Employee or certain Employees. Articles 7:404, 7:407 paragraph 2 and 7:409 of the Dutch Civil Code are expressly excluded;
g. Activities: all activities and transactions to be carried out by the Contractor on behalf of the Client for which the Order has been given and that have been accepted by the Contractor, as well as all activities and transactions resulting therefrom for the Contractor.
Article 2. APPLICABILITY
1. These general terms and conditions apply to: all offers, offers, Orders, legal relationships and Agreements, however named, where the Contractor undertakes or will undertake to perform Work for the Client, as well as to all Activities resulting therefrom for the Contractor.
2. Deviations from and additions to the Assignment and/or these general terms and conditions are only valid if they have been expressly agreed in writing in, for example, a (written) Agreement or (further) order confirmation.
3. If any condition in these general terms and conditions differs from a condition in the order confirmation, the condition included in the order confirmation applies with regard to the contradiction.
4. These general terms and conditions also apply to any additional or follow-up orders.
5. The Contractor hereby expressly rejects the applicability of the Client's general terms and conditions.
6. These general terms and conditions can also be invoked by natural and legal persons who are directly or indirectly involved in any way, whether or not under an employment agreement, in the services provided to the Client by or on behalf of the Contractor.
Article 3. CLIENT INFORMATION
1. The Client is obliged to provide the Contractor with all Documents that the Contractor, in its opinion, needs for the correct execution of the Assignment granted in the desired form, in the desired manner and in a timely manner. The contractor decides what should be understood by timely, the desired form and the desired way.
2. The Client guarantees the accuracy, completeness and reliability of the Documents provided by him, even if they come from third parties, unless the nature of the Assignment dictates otherwise.
3. The Client indemnifies the Contractor against damage resulting from incorrect or incomplete Documents.
4. The additional costs and extra hours incurred by the Contractor, as well as other damage, are at the Client's expense and risk due to the Client's failure, timely or improper provision of Documents necessary for the performance of the Activities.
5. In the event of electronic transmission of information - including (but not limited to) tax returns, financial statements, reports - from (and on behalf of) Client to third parties, Client is regarded as the party that signs and transmits the relevant information.
6. The Contractor has the right to suspend the execution of the Assignment until the Client has fulfilled the obligations set out in paragraph 1.
7. At the Client's first written request, the Contractor will return the original Documents provided by the Client to the Client.
Article 4. EXECUTION OF THE ORDER
1. Contractor performs the Assignment to the best of its ability and in compliance with applicable laws and (Professional) regulations.
2. Contractor determines how the Assignment is executed and by which Employee (s).
3. The Contractor has the right to have Work carried out by a third party to be appointed by the Contractor.
Article 5. (PROFESSIONAL) REGULATIONS
1. The Client fully cooperates with the obligations that arise for the Contractor from the applicable (Professional) regulations.
2. Contractor takes appropriate measures to protect Client's personal data and other confidential information. Contractor will inform Employees and third parties to be engaged about the confidential nature of the information. Processing of personal data by the Contractor takes place in accordance with the applicable (inter) national laws and (Professional) regulations in the field of personal data protection.
3. The Client is aware that, in some cases, Contractor is obliged to disclose Client's confidential information on the basis of (inter) national laws or (Professional) regulations. To the extent necessary, Client hereby gives its consent and cooperation to such disclosure, including (but not limited to) cases where Contractor:
a. described in laws and (Professional) regulations and must report unusual transactions that have become known, carried out or intended during the performance of its Activities to the authorities established by the government;
b. must report fraud in certain situations;
c. is obliged to investigate the (identity of) Client or his client.
4. The Contractor excludes any liability for damage that occurs to the Client as a result of the Contractor complying with the laws and (Professional) regulations applicable to him.
5. Parties will impose their obligations under this article on third parties they engage.
Article 6. INTELLECTUAL PROPERTY
1. The execution of the Assignment by the Contractor does not also include the transfer of intellectual property rights owned by the Contractor. All intellectual property rights that arise during, or arise from, the execution of the Assignment belong to the Contractor.
2. The Client is expressly prohibited from reproducing, disclosing or exploiting the products that are subject to the Contractor's intellectual property rights, or products subject to intellectual property rights with regard to the use of which the Contractor has acquired user rights. This includes, for example (but not limited to): computer programs, system designs, working methods, advice, (model) contracts, reports, templates, macros and other mental products.
3. The Client is not allowed to hand over the products mentioned in paragraph 2 to third parties without the Contractor's prior written consent. This does not apply if the Client wishes to obtain an expert opinion on the performance of the Activities by the Contractor. In that case, the Client will impose its obligations under this article on the third parties engaged by it.
Article 7. FORCE MAJEURE
1. If the parties are unable to fulfill the obligations under the Agreement, not timely or properly as a result of force majeure within the meaning of art. 6:75 of the Dutch Civil Code, those obligations will be suspended until the parties are still able to fulfill them in the agreed manner.
2. If the situation referred to in paragraph 1 occurs, the parties have the right to terminate the Agreement in whole or in part and with immediate effect in writing, without the right to any compensation.
3. If the Contractor has already partially fulfilled the agreed obligations upon the occurrence of the force majeure, the Contractor is entitled to invoice the Work performed separately and prematurely and the Client must pay this invoice as if it concerned a separate transaction.
Article 8. FEES AND COSTS
1. 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 expressly agree otherwise, such as payment of a fixed price. Payment of the fee does not depend on the result of the Activities unless otherwise agreed in writing. Travel time and accommodation costs for the Activities are charged separately.
2. In addition to the fee, the expenses incurred by the Contractor and the invoices of third parties engaged by the Contractor will be charged to the Client.
3. The Contractor has the right to request payment of an advance from the Client. Failure to (timely) pay the advance may be a reason for the Contractor to (temporarily) suspend the Activities.
4. If fees or prices change after the conclusion of the Agreement, but before the Assignment is fully executed, the Contractor has the right to adjust the agreed rate, unless otherwise expressly agreed.
5. If this is required by law, the turnover tax will be charged separately on all amounts owed by the Client to the Contractor.
Article 9. PAYMENT
1. Payment by the Client of the amounts due to the Contractor must, without the Client being entitled to any deduction, discount, suspension or set-off, be made within 30 days of the invoice date, unless otherwise agreed. The day of payment is the day of crediting the amount due to the Contractor's account.
2. If the Client has not paid within the period specified in paragraph 1, the Client is in default by operation of law and the Contractor is entitled to charge the statutory (commercial) interest from that moment on.
3. If the Client has not paid within the period specified in paragraph 1, the Client is obliged to reimburse all judicial and extrajudicial (collection) costs actually incurred by the Contractor. The reimbursement of the costs incurred is not limited to any cost order determined by the court.
4. In the event of an Order given jointly, Clients are jointly and severally liable for payment of the invoice amount, the interest (s) and costs due.
5. If, in the opinion of the Contractor, the financial position or payment behavior of the Client gives reason to do so, or if the Client fails to pay an advance or an invoice within the specified payment period, the Contractor is entitled to require the Client to immediately provide (additional) security in a form to be determined by the Contractor. If the Client fails to provide the requested security, the Contractor is entitled, without prejudice to its other rights, to immediately suspend further execution of the Agreement and all that the Client owes the Contractor for whatever reason is immediately due and payable.
Article 10. TIME LIMITS
1. If a term/date has been agreed between Client and Contractor within which the Assignment must be executed and Client fails to:
(a) to make a prepayment - if agreed - or
(b) If the necessary Documents are made available in a timely, complete, manner and in the desired form, the Client and Contractor will consult on a new term/date within which the Assignment should be executed.
2. Time limits within which the Activities must be completed are only considered a deadline if this has been expressly agreed (in writing) between the Client and Contractor in so many words.
Article 11. LIABILITY AND INDEMNITIES
1. The Contractor is not liable for damage suffered by the Client that occurs because the Client has not provided the Contractor with any, incorrect or incomplete Documents, or because they have not been delivered in time. This also includes the situation that the Contractor is unable to file the financial statements with the Chamber of Commerce within the statutory period as a result of an act or omission (on the part of) the Client.
2. The Contractor is not liable for indirect damage, including: lost profit, missed savings, damage due to business interruption and other consequential or indirect damage resulting from the Contractor's failure, late or improper performance.
3. The Contractor's liability is limited to compensation for direct damage that is the direct result of a (related series of) attributable shortcoming (s) in the execution of the Assignment. This liability for direct damage is limited to the amount that, according to the Contractor's liability insurer, will be paid out for the relevant case, plus any deductible to be borne by the Contractor under the insurance. Direct damage includes - among other things - the reasonable costs incurred to determine the cause and extent of the damage; the reasonable costs incurred to make the Contractor's performance comply with the Agreement and the reasonable costs incurred to prevent or limit the damage.
4. If, for whatever reason, the liability insurer does not pay out - as referred to in paragraph 3 of this article - the Contractor's liability is limited to the amount of the fee charged for the execution of the Assignment. If the Assignment concerns a continuing performance agreement with a term of more than one (1) year, the amount referred to above will be set at once the amount of the fee that was charged to the Client in the twelve months prior to the occurrence of the damage. Under no circumstances will the total compensation for the damage under this article paragraph exceed €300,000 per attributable shortcoming, unless the parties - given the size of the Assignment or the risks associated with the Assignment - see reason to deviate from this maximum when entering into the Agreement.
5. A coherent series of attributable deficiencies counts as one (1) attributable shortcoming.
6. The limitations of liability 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 management.
7. The client is obliged to take damage control measures. The Contractor has the right to undo or limit the damage by repairing or improving the Work carried out.
8. The Client indemnifies the Contractor against third-party claims for damage caused by the Client not providing the Contractor with any, incorrect or incomplete Documents.
9. The Client indemnifies the Contractor against claims from third parties (including Contractor's employees and third parties engaged by Contractor) who suffer damage in connection with the execution of the Assignment, which damage is the result of Client's acts or omissions or unsafe situations in its company or organization.
10. The provisions of paragraphs 1 to 9 of this article relate to both Contractor's contractual and non-contractual liability towards the Client.
Article 12. TERMINATION
1. Client and Contractor can terminate the Agreement immediately (prematurely) at any time without giving notice by giving written notice to the other party. If the Agreement ends before the Assignment is completed, the Client owes the fee in accordance with the hours specified by the Contractor for Work performed on behalf of the Client.
2. If the Client cancels (prematurely), the Contractor is entitled to compensation for the loss of occupancy caused and plausible on its part, to reimburse additional costs that the Contractor has already incurred, and to reimburse costs resulting from any cancellation of engaged third parties (such as - among others - any costs related to subcontracting).
3. If the Contractor cancels (interim), the Client has the right to cooperate with the Contractor in transferring Work to third parties, unless there is intent or deliberate recklessness on the part of the Client, forcing the Contractor to terminate. The condition for the right to cooperation as set out in this paragraph is that the Client has paid all underlying outstanding advances or all invoices.
Article 13. RIGHT OF SUSPENSION
1. After careful consideration of interests, the Contractor is authorized to suspend the fulfillment of all its obligations, including the delivery of Documents or other items to the Client or third parties, until all due and payable claims against the Client have been paid in full.
2. The first paragraph does not apply to Client Documents that have not (yet) been processed by the Contractor.
Article 14. EXPIRY PERIOD
Unless otherwise provided in these general terms and conditions, the Client's rights of action and other powers for whatever reason against the Contractor in connection with the performance of Work by the Contractor expire, in any case after one year after the Client became aware or could reasonably be aware of the existence of these rights and powers. This period does not include the possibility to file a complaint with the appropriate complaint-handling authority (s) and/or the Disputes Board.
Article 15. ELECTRONIC COMMUNICATION AND ELECTRONIC FILING OF FINANCIAL STATEMENTS
1. During the execution of the Assignment, Client and Contractor can communicate with each other by electronic means and/or make use of electronic storage (such as cloud applications). Unless otherwise agreed in writing, the parties may assume that the transmission of properly addressed faxes, e-mails (including e-mails sent via the Internet) and voicemail messages, regardless of whether they contain confidential information or documents relating to the Engagement, will be mutually accepted. The same applies to other means of communication used or accepted by the other party.
2. Client and Contractor are not liable to each other for damage that may arise from one or each 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 delay in delivery of electronic communications, omissions, distortion, interception or manipulation of electronic communications by third parties or by software/equipment used for transmission, reception or processing of electronic communications, transmission of viruses and the failure or malfunctioning of the telecommunications network or other means of electronic communication, except insofar as the damage is the result of intent or gross negligence. The foregoing also applies to the use that the Contractor makes of this in its contacts with third parties.
3. In addition to the previous paragraph, the Contractor accepts no liability for any damage caused by or in connection with sending (electronic) financial statements electronically and filing them digitally with the Chamber of Commerce.
4. Both Client and Contractor will do or fail to do anything reasonably expected of each of them to prevent the occurrence of the above risks.
5. The data extracts from the sender's computer systems provide compelling evidence of (the content of) the electronic communication sent by the sender until the recipient provides proof to the contrary.
6. The provisions of Article 11 shall apply accordingly.
Article 16. OTHER PROVISIONS
1. If the Contractor performs Work at the Client's location, the Client guarantees a suitable workplace that meets the statutory health and safety standards and other applicable regulations with regard to working conditions. In that case, the Client must ensure that the Contractor is provided with office space and other facilities that, in the Contractor's opinion, are necessary or useful to execute the Agreement and that meet all (legal) requirements. With regard to (computer) facilities made available, the Client is obliged to ensure continuity, including through adequate backup, security and virus control procedures. Contractor will apply virus control procedures when Contractor makes use of Client's facilities.
2. The Client will not hire or approach any Employees involved in the performance of the Activities to hire the Client, whether temporarily, directly or indirectly, or to work directly or indirectly for the Client, whether or not employed, during the term of the Agreement or any extension thereof and during the 12 months thereafter.
3. These general terms and conditions have been drawn up in both Dutch and English languages. In the event of a difference or discrepancy between the English and Dutch texts, the Dutch text is binding.
4. Provisions in the Engagement that, expressly or by their nature, must remain in force after the end or termination of the Assignment remain in force after expiration or termination, including articles 6, 8, 9, 11, 16 paragraphs 2 and 17.
Article 17. APPLICABLE LAW AND CHOICE OF FORUM
1. The Agreement is governed by Dutch law.
2. All disputes will be settled by the competent court in the district where Contractor is located.
3. The provisions of paragraphs 1 and 2 of this article do not affect the Client's ability to submit a dispute to the Disputes Board and/or file a complaint with the Contractor itself, the Court of Auditors (disciplinary law) or the Complaints Committee (complaint law).
Article 18. REPAIR CLAUSE NULLITIES
1. If any provision of these general terms and conditions or the underlying Order/Agreement should be wholly or partly void and/or invalid and/or unenforceable, as a result of any legal regulation, court order or otherwise, this will not have any effect on the validity of all other provisions of these general terms and conditions or the underlying
Assignment/Agreement.
2. If any provision in the Assignment or part of the Assignment cannot be invoked by law, the remaining part of the Assignment remains in full force, provided that the provision on the part that cannot be invoked should be deemed to have been amended in such a way that it is possible to invoke it, maintaining the intention of the parties with regard to the original provision or the original part as much as possible.
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