General terms and conditions
GENERAL TERMS AND CONDITIONS of IFAA Accountants & Tax advisers B.V.
1.1 These general terms and conditions apply to all Assignments carried out by IFAA B.V., IFAA Tax advisers B.V., IFAC Accountants & Advisers B.V. and IFAA Almere B.V. (hereinafter jointly referred to as “IFAA”). 1.2 The Assignment will be carried out by us with due regard to the current (inter)national legislation and regulations, including the applicable professional rules*. We are never obliged to any act or omission that is in conflict or inconsistent with the aforesaid legislation and regulation.
2 COMING INTO EFFECT OF THE ASSIGNMENT
2.1 The Assignment comes into effect at the time that the written agreement signed by you, in which the Assignments is recorded, has been returned to, and received by us, except for the provisions of 2.3 hereinafter. 2.2 In conformity with the Money Laundering and Terrorist Financing (Prevention) Act we must identify all potential clients and verify this identification before we can start the execution of the Assignment. Verification of the data provided by the potential client will take place on the basis of documents, data and information from independent and trustworthy sources, such as the Commercial register of the Chamber of Commerce and for clients who have been incorporated under foreign law, on the basis of the information provided by independent professional business services providers. We may ask for your cooperation with regard to identification and verification. The assessment of the identification and the verification, which takes place in accordance with the law, is reserved to us. 2.3 If the Assignment signed by you has not (yet) been returned and received by us, the Assignment will be deemed to have come into effect under the applicability of these general terms and conditions, at the time that we have started the execution of the Assignment on your request.
3 YOUR OBLIGATIONS
3.1 You will make all data and documents, which we need for the correct and timely execution of the Assignment granted, available to us in time and in the form and manner required by us. 3.2 In that context you will inform us promptly about (changes in) your legal structure and the control structure within the group to which you belong, as well as about all other (financial) joint ventures you participate in or of which you form part, all this in the broadest sense of the word and of other facts and circumstances that can be of importance in connection with the execution of the Assignment, in order to enable us to adhere to the applicable independent requirements. 3.3 You are personally and exclusively responsible for the assignment description and for the decisions that you take or want to take as a result of and/or (also) on the basis of our work, including the taking of management decisions in your company. 3.4 You guarantee the correctness, completeness and reliability of the data and documents made available to us, also if these originate thorough or from third parties. 3.5 The extra costs and loss ensuing from delay in the execution of the Assignment, arisen by not, not in time or not properly making available of the requested data, documents, facilities and/or employees, are on your account and risk.
4 EXECUTION OF THE ASSIGNMENT
4.1 All work which is carried out by us, is carried out to our best knowledge and abilities in accordance with high standards. With regard to the envisaged work there is an obligation to use best endeavours on our part. 4.2 We determine the manner in which and by which persons the Assignment is executed and thereby take your requirement made known by you as much as possible into consideration. 4.3 We can carry out more work than the Assignment provides for and charge you for this, if you have provided prior permission for this, or if this work ensues from any (inter)national legalisation or (professional) regulations that are applicable to the Assignment. 4.4 The data made available by you for the execution of the Assignment will be returned to you on your request after the execution of the Assignment. We maintain with regard to the Assignment a personal (electronic) working file containing (copies of) documents that are relevant in our opinion, which remains our property. At the execution of the Assignment we are not deemed to hold information from other Assignments that we have executed for you, or as the case may be are currently executing for you.
5 CONFIDENTIALITY AND DATA PROTECTION
5.1 Unless (i) any provision of (inter)national legislation or (professional)regulations obliges us to disclose; or (ii) we or persons connected to, or employed by us, or acting on behalf of us or for themselves in disciplinary, civil, administrative or criminal proceedings in the course of which this information can be of importance, we and the persons deployed by us will not make confidential information and personal data public to other third parties other than that referred to in subsection 2. 5.2 You agree that in the context of: (i) an Assignment that you grant to us, (ii) the compliance with statutory obligations resting on us, (iii) risk management and quality review requirements, and (iv) internal commercial objectives, we process confidential information and personal data concerning you and/or persons (previously) employed by or at or associated with you, your clients or third parties, including the parts of this data with: (a) other IFAA firms or preferential partners; and (b) if necessary with parties involved with the execution of the Assignment; and (c) our insurers or legal or financial advisers. 5.3 We will take appropriate measures to protect the confidential information and personal data and to inform the third parties to be engaged by us as well as employees about the confidential character of the information. 5.4 Processing of personal data by us takes place in conformity with the applicable (inter)national legislation and (professional) regulations in the field of the protection of personal data. 5.5 Unless there is (inter)national legislation or (professional) regulations that oblige you to disclose or prior written permission from us has been provided for this, you will not make public, or provide to third parties, information with regard to the Assignment, and the contents of reports, advice or otherwise other written forms of communication from us. 5.6 Parties will impose their obligations on the basis of this article on third parties to be engaged by them. 5.7 We are entitled to state your name and main features of the work carried out to our (potential) clients to indicate our experience.
6 INTELLECTUAL PROPERTY
6.1 We retain all rights to intellectual property with regard to products of the mind that we use or have used and/or develop and/or have developed in the context of the execution of the Assignment, and vis-a-vis we have or can enforce the copyright or other rights intellectual property rights. 6.2 You are expressly prohibited from reproducing, publicising or utilising, whether or not by engagement of third parties, these products, including inter alia computer programmes, system designs, working methods, advice, (model) contracts, brands and logos and other products of the mind from us, all this in the broadest meaning of the word. Reproduction and/or publication and/or utilisation is only permitted after our prior written permission. You have the right to reproduce the written documents for personal internal use, insofar as suitable within the objective of the Assignment. In the event of interim termination of the Assignment, the aforesaid will apply mutatis mutandis.
7.1 If after the coming into effect of the Assignment, but before the Assignment has been entirely executed, rate determining factors, such as wages and/or prices, undergo an alteration, we will be entitled to adjust the agreed fee accordingly. 7.2 Our fee is excluding our expenses and excluding invoices of third parties engaged by us. 7.3 All rates are excluding turnover tax and other duties which are (can be) imposed by authorities and which we will charge on to you.
8.1 Payment must, without deduction, reduction or debt settlement, take place within 14 days from the invoice date. Payment must take place in the currency stated in the invoice, by means of transfer in favour of a bank account to be designated by us. Objections to the level of the submitted invoice do not suspend your payment obligation. 8.2 All judicial and extrajudicial (collection)costs that we incur or have incurred in connection to the failure by you to fulfil your (payment)obligation will be on your account. 8.3 If, in our opinion, your financial position and/or your payment record give cause thereto, we will be entitled to require from you that you promptly provide (extra) surety in a form to be determined by us and/or to make an advance payment. If you fail to provide the required surety or to make the requested advance payment, we will be entitled, without prejudice to our other rights, to suspend the execution of the Assignment with immediate effect and all that which you owe us, on whatsoever basis, will be immediately due and payable. 8.4 In case of a jointly granted Assignment all clients, insofar as the work in favour of these joint clients has been executed, are jointly and severally liable for the payment to us of the entire invoice amount.
9 COMPLAINTS 9.1 Complaints with regard to the work carried out and/or the invoice amount must at the risk of forfeiting all claims be made known to us within 60 days from the date of dispatch of the documents or information about which you are complaining, or as the case may be within 60 days from the discovery of the defect, the error, or the shortcoming, if you demonstrate that the defect, the error, or the shortcoming could not reasonably have been discovered earlier. 9.2 Complaints, as referred to in the first subsection, do not suspend your payment obligation. You are in no case entitled to, on the basis of a complaint with regard to a certain service, postpone payment or to refuse payment of other services delivered by us to which the complaint does not relate. 9.3 In the event of a complaint with good reason and brought in time, you have the choice between adjustment of the fee charged, free of charge improvement or the carrying out anew of the rejected work, or wholly or in part non (no longer) execution of the Assignment at proportional refund of the fee already paid by you.
10 DELIVERY PERIOD
10.1 If you owe an advance payment or must make information and/or materials necessary for the execution available, then the period within which the work must be completed does not commence earlier than when the payment has been received in full by us, respectively the date on which the information and/or materials has/have been made entirely available to us. 10.2 The periods within which the activities must be completed are only to be deemed as final deadlines if this has been agreed in writing in advance. 10.3 The Assignment cannot - unless it has been established that execution is permanently impossible - be terminated by you due to exceeding the term, unless we also do not or not entirely execute within a reasonable period notified to us in writing after the expiry of the agreed delivery period.
11 INTERIM TERMINATION OF THE ASSIGNMENT
11.1 Parties can terminate the agreement in writing at all times with due regard to a reasonable notice period. If the Assignment ends prior to completion you will owe the fee for the work that we have carried out for your benefit. 11.2 Parties can terminate the Assignment wholly or in part without notice of default and without judicial intervention with immediate effect in the event that the other party - whether or not temporarily - is granted moratorium, if the other party is declared insolvent or if his company is liquidated or dissolved. 11.3 If you have proceeded to premature termination, we have the right to reimbursement of costs that we reasonably had to incur as a result of the early termination of the Assignment (such as inter alia costs with regard to subcontracting), unless there are facts and circumstances at the basis of the termination that can be attributed to us. If we have proceeded to premature termination, you have the right to our cooperation with the transfer of the work to third parties, unless there are facts and circumstances at the basis of the cancellation that can be attributed to you.
12.1 We will carry out our work to the best of our ability and will observe thereby the carefulness that can be expected from us. If a mistake is made because you have provided incorrect or incomplete information, we will not be liable for the damage that has arisen from this. Our total liability toward you for any mistakes that could have been avoided by careful acting on our part, is limited to no more than thrice the amount of the fee that you have paid to us and/or still owe for the specific work carried out under the Assignment from which the mistake ensues with a maximum limit of € 50,000. If the Assignment has a longer duration than twelve months, then the total liability in the context of the Assignment is limited to no more than thrice the amount of the fee that you have paid to us and/or still owe over the first twelve months for the specific work carried out under the Assignment from which the mistake ensues with a maximum limit of € 50,000. Our limitation of liability does not apply if on our part there is intention or wilful recklessness and/or if mandatory (inter)national legislation or (professional) regulations does not permit such limitation. 12.2 If the Assignment is carried out for more (legal) persons, then the limitation of liability applies jointly with regard to all (legal) persons involved in the Assignment. It is the responsibility of that group of (legal) persons involved to, in case of liability, to divided the maximum compensation to be paid among the group. 12.3 You indemnify us against claims of third parties due to damage that is caused because you have provided us with incorrect or incomplete information, unless you demonstrate that the damage has no connection to culpable acts or omissions that can be attributed to you, or as the case may be is caused by our intention or wilful recklessness and unless mandatory (inter)national legislation or (professional) regulations do not permit such a provision. 12.4 All Assignments are exclusively accepted and executed by, or on behalf of us. You will exercise any of your rights of claim and recourse against us and not against our (directors of) shareholders, directors or employees or agents engaged by us. 12.5 We are not liable for consequential loss, indirect loss, trading loss or punitive loss and/or loss of profit. 12.6 Unless this is expressly stipulated in the Assignment, we do not provide investment advice which means that our statements with regard to any organisation cannot be understood to be investment advice. 12.7 We will only be held liable for the services that are delivered by IFAA. We are not responsible for the services that are delivered by partners engaged and/or referred by IFAA.
13 CONTRACT TAKEOVER/INDEMNITY
13.1 You are not permitted to transfer (any obligation under) the Assignment to third parties, unless we have agreed to this expressly and in writing. We are entitled to attach conditions to this permission, which will not be withheld on unreasonable grounds. In that case you undertake in any event to impose all relevant (payment) obligations under the Assignment and these general terms and conditions on the third party. You will remain at all times in addition to this third party jointly and severally liable for the obligations under the Assignment and these general terms and conditions. 13.2 You indemnify us with regard to all claims of third parties that may arise as a result of non or incorrect fulfilment of any obligation by you under the Assignment and/or these general terms and conditions, unless mandatory (inter)national legislation or (professional) regulations does not permit such a provision. This indemnity does not apply to assignments for statutory audits of the financial statements. This indemnity is also stipulated for the benefit of (directors of) shareholders, directors or our employees and third parties, including other IFAA firms engaged by us for the execution of the Assignment, who accordingly therefore can directly rely on this indemnity.
14 INTERNET USE
Parties can communicate with each other by means of electronic mail. Parties acknowledge that the use of electronic mail involves risks such as - but not limited to - distortion, delay, interception, manipulation and viruses. Parties hereby record not to hold each other liable for damage that may possibly ensue for one or any of them as a result of the use of electronic mail. This also applies to the use that we make of electronic communication - irrespective of the form thereof - with our contact with third parties including the (Dutch) Tax and Customs Administration. Parties will do, or omit, all that which reasonably can be expected of them, to prevent the occurrence of aforesaid risks. In case of doubt between parties about the contents of emails received, the contents of the email sent by the sender are decisive.
15 EXPIRY PERIOD
Insofar as the assignment does not determine otherwise, your rights of claim and other entitlements on whatsoever basis toward us lapse in any event after the expiry of one year after the damage for which we are held liable first appeared and in any event after the expiry of five years after the damage causing event took place.
16 WAIVER OF RIGHTS
Lack of enforcement of any right or any entitlement will not affect or limit any of our rights and entitlements under this Assignment. Waiver of a right under any provision or condition in the Assignment will exclusively have effect if this is done expressly in writing.
If and insofar as on the basis of reasonableness and fairness or the unreasonably onerous character thereof, no reliance can be made on any provision of the Assignment, the provision concerned with regard to the contents and effect thereof will in any event be given a similar meaning as much as possible, so this can be relied on after all.
18 CONTINUED EFFECT
The provisions of the Assignment, of which expressly or implicitly the intention is that they also after termination of this Assignment continue in effect, will after termination continue in effect and continue to bind both parties.
19 CONFLICTING CLAUSES/PRIORITY
In the event that these general terms and conditions and the written agreement of assignment contain mutually conflicting conditions, the conditions included in the written agreement of assignment will prevail. Derogation from these general terms and conditions can exclusively be done in the written agreement of assignment.
20 RECRUITMENT BAN
None of the parties may during the execution of the assignment and within one year after termination of the assignment employ employees who are involved or who have been involved by the other party in the execution of the Assignment, or negotiate with these employees about commencing employment other than in consultation with the other party. The party that in spite of this recruitment ban still employs (an) employee(s) of the other party is obliged to pay to the other party at least the costs of recruitment that the other party will have to incur to recruit (a) replacement employee(s).
21 APPLICABLE LAW AND CHOICE OF FORUM
21.1 Dutch law applies to all Assignments and negotiations between parties. 21.2 All disputes related to Assignments between parties will at first instance be settled by the competent Amsterdam District Court.
In these general terms and conditions the following terms have the following meanings: 22.1 You, you or client: the party for whom the Assignment is executed 22.2 We or our: those of the legal entities referred to hereinafter, to whom the Assignment is granted: IFAA, IFAA B.V., IFAA Tax Advisers B.V., IFAA Almere B.V. and/or IFAC Accountants & Advisers B.V. 22.3 Assignment: the verbal or written agreement, whereby we undertake toward you to carry out work. *Professional regulations include the conduct and professional regulations of inter alia NBA, NOAB and RB if and insofar as those apply to the persons involved in the execution of the assignment. July 2011