ALGEMENE VOORWAARDEN | Berkenrode Audit

TERMS AND CONDITIONS

General Terms and Conditions

Berkenrode Audit BV

These general terms and conditions of Berkenrode Audit B.V. apply to all legal relationships, including agreements between the Client and the Contractor.

1. Definitions

The definitions stated below in capital letters have the following meanings in the context of these general terms and conditions:

Professional regulations: the professional rules and rules of conduct that govern all accountants due to registration in the accountants' register of the NBA (the Netherlands Institute of Chartered Accountants);
Documents: all information or data made available by the Client to the Contractor; all data produced or collated by the Contractor in the context of the performance of the Assignment/Agreement; and all other information of any relevance for the execution or completion of the Assignment. The aforesaid information can be stored in tangible or intangible data carriers, whether or not placed with third parties;
Office: Berkenrode Audit B.V.
Employee: a natural person employed by or associated with the Contractor, whether or not on the basis of an employment contract;
Assignment / Agreement: the agreement for services, in the course of which the Contractor undertakes towards the Client to execute specific Work;
The Client: the natural person or the legal entity who/which has provided the Contractor with the Assignment to execute Work;
The Contractor: the Office that has accepted the Assignment. All Assignments are exclusively accepted and executed by the Office, not by or on behalf of an individual Employee, even if the Client has provided the Assignment expressly or tacitly for the purpose of execution thereof by a specific Employee or specific Employees. The applicability of Sections 404, 407 subsection 2 and 409 Book 7 of the Civil Code is expressly excluded;
Work: all work to be executed by the Contractor for the benefit of the Client for which an assignment is provided and which has been accepted by the Contractor, as well as all work ensuing therefrom for, and to be executed by, the Contractor.
The Client will exclusively exercise any rights of claim or rights of recourse against the Contractor and not against directors, shareholders, or employees of the Contractor or auxiliary persons engaged by the Contractor.

2. Applicability

These general terms and conditions apply to: all offers, tenders, Assignments, legal relationships, and Agreements, by whatever name, whereby the Contractor undertakes/will undertake to execute Work for the Client, as well as all Work ensuing therefrom for the Contractor.
Derogations from, or addendums to, these general terms and conditions, will only be valid if these have been expressly agreed in writing, in for example, an Agreement (in writing) or in (a further) confirmation of the assignment.
If any term or condition in these general terms and conditions derogates from a term or condition in the confirmation of the assignment, the term or condition included in the confirmation of the assignment will apply concerning the conflict..
These general terms and conditions also apply to any additional or subsequent assignments.
The applicability of the general terms and conditions of the Client is hereby expressly rejected by the Contractor.
Natural persons and legal entities can rely on these general terms and conditions, which natural persons and legal entities are involved in the provision of service to the Client by or on behalf of the Contractor, directly or indirectly, or in any manner whatsoever, whether or not on the basis of an employment contract.
The underlying Assignment/Agreement - together with these general terms and conditions - represents the complete arrangements between the Client and the Contractor with regard to the Work for which the Agreement is concluded. All arrangements or proposals made earlier between parties related to this matter have lapsed.

3. Commencement and Duration of the Agreement

Every agreement will only come into effect and will commence at the time when the Contractor has received the confirmation of the assignment signed by the Client and - insofar as applicable – will have retroactive effect until the time when the Contractor has commenced the Work. The confirmation will be based on the information provided by the Client to the Contractor at the time thereof. The confirmation will be deemed to represent the Agreement correctly and completely.
Parties are free to prove that the Agreement has come into effect in another manner.
Each Agreement is entered into for an indefinite period of time, unless the nature, contents or scope of the Assignment that this is entered into for a fixed period.

4. Client Data

The Client will be obliged to make all Documents, which the Contractor requires in his/her opinion for the correct execution of the Assignment provided, available to the Contractor in the required form, in the required manner and in a timely manner. The Contractor will determine what in a timely manner, the required form and the required manner must be taken to mean.
The Client will be obliged to inform the Contractor promptly with regard to facts and circumstances, which can be important related to the performance of the Agreement.
The Client guarantees the accuracy, the completeness and the reliability of the Documents provided by the Client, also if these originate from third parties, insofar as this does not ensue otherwise from the nature of the Assignment.
The Client indemnifies the Contractor against damage resulting from inaccurate or incomplete Documents.
The extra costs incurred by the Contractor and extra hours worked, as well as the further damage on the part of the Contractor, due to the Client not, not in a timely manner, or not properly, providing the Documents necessary for the execution of the Work will be at the Client's expense.
In the event of electronic sending of information - including (but not limited to) tax returns, annual accounts, reports - of (and on order of) the Client by the Contractor to third parties, the Client will be regarded as the party that signs and sends the information concerned.
The Contractor has the right to suspend the execution of the Assignment until the time when the Client has fulfilled the obligations referred to in the first subclause.
The Contractor will, upon first request from the Client, return to the Client the original Documents provided by the Client.

5. Execution of the Assignment

The Contractor will execute the Assignment to the best of his/her abilities and with due regard to the applicable legislation and (Professional) regulations.
The Contractor determines the manner in which the Assignment will be executed and by which Employee(s).
The Contractor has the right, without notification to and without express permission from the Client, to have specific Work executed by a person or third party to be designated by the Contractor.
When accepting the Assignment, an obligation to use best endeavours will be vested in the Contractor and expressly not any obligation of result with regard to the execution of the obligations ensuing from the Agreement.

6. (Professional) Regulations

The Client will provide full cooperation to the obligations ensuing for the Contractor from the applicable (Professional) regulations.
The Contractor will take suitable measures for the protection of the personal data and other confidential information originating from the Client. The Contractor will inform the Employees and the third parties to be engaged of the confidential nature of the information. The processing by the Contractor will take place in conformity with the applicable (inter)national legislation and (Professional) regulations in the field of the protection of personal data.
The Client is aware that the Contractor is in some cases obliged, on the basis of (inter)national legislation or (Professional) regulations, to disclose the Client’s confidential information. Insofar as necessary the Client hereby provides permission and cooperation to such disclosure, including (but not limited to) in the cases that the Contractor:
- must report executed or intended unusual transactions described in legislation and (Professional) regulations, which become known to the Contractor during the execution of the Work, to the authorities set up for this purpose by the government;
- must report fraud in specific situations;
- is obliged to conduct an inspection of (the identity of) the Client, or as the case may be the Client's customer.
The performance of the Agreement is not specifically focused on the discovery of fraud, unless expressly stated otherwise in writing. If the work results in indications of fraud, the Contractor will act in General Terms and Conditions of Berkenrode Audit B.V. BAv1.0 25juni2018 2 accordance with the relevant legislation and regulations applicable to the Contractor. The costs ensuing from this work will be charged to the Client.
The Contractor excludes any liability for damage that arises for the
Client resulting from the Contractor complying with the legislation and (Professional) regulations applicable to the Contractor.
Parties will impose their obligations on the basis of this article on any third parties to be engaged by them.

7. Confidentiality

The Client and the Contractor are obliged to non-disclosure of all confidential information, which they acquire from each other in the context of the Agreement or from another source, as well as of the results acquired by means of the processing of this information. Information applies as confidential if this has been notified by the other party or if this ensues from the nature of the information.
The confidentiality does not relate to information that is public knowledge and does not relate to confidential information that has been published, other than due to non-compliance with the Agreement and the general terms and conditions.
The confidentiality also does not relate to (confidential) consultation between Employees, or as the case may be a quality review of the Work executed by an Employee, insofar as the Contractor deems this necessary for the careful performance of the Agreement.
The confidentiality further does not relate to information that is important in the event that the Contractor and/or legal entities/natural persons associated with the Contractor act for themselves in disciplinary, civil law, administrative law and/or criminal proceedings and/or the defence to be put forward in such proceedings.
If the Contractor is obliged, on the basis of (Professional) regulations or a judicial decision, to (also) provide confidential information to the third parties designated by the (Professional) regulations or by the court with competent jurisdiction, and the Contractor cannot with regard to this rely on the right to refuse to give evidence, the Contractor will not be obliged to compensation or indemnification and the Client will not be entitled to terminate the Agreement on the basis of any damage that has arisen because of this.
The Contractor and the Client will be obliged to impose on whomsoever, whether or not temporarily and in whatsoever manner, is made use of during the execution of the obligations vested in them on the basis of the Agreement, with regard to the obligations ensuing from this article, that these parties will accept the obligations referred to in this article as their own and they will impose these by means of a perpetual clause (each time) on third parties.
The Contractor will be entitled to use the figures-based outcomes, acquired after the processing of the (confidential) information, for statistical purposes and/or purposes related thereto, if and insofar as the Contractor cannot be traced back thereby.
The Contractor will be entitled to state the Client name to potential Clients, as well as to state in the main features which work the Contractor has executed for the Client, for an indication of the Contractor's knowledge and experience.
The Client is not permitted to disclose the contents of a confirmation of the assignment, reports, advice, opinions, or other statements from the Contractor, whether or not in writing, or to make these otherwise available to third parties, with the exception of insofar as the Contractor has provided express permission in writing for this purpose, or if it takes place for obtaining an expert opinion regarding the Work executed by the Contractor. in the event of a judicial decision that obliges the Client for this purpose, or as the case may be if the Client acts for itself in disciplinary, civil law, administrative law, and/or criminal proceedings and/or the defence to be put forward in such proceedings.

8. Intellectual Property

The execution of the Assignment by the Contractor does not also include the transfer of intellectual property rights that are vested in the Contractor. All intellectual property rights arisen during, or ensuing from, the execution of the Assignment belong to the Contractor
The Client is expressly prohibited from reproducing, publishing or utilising the products, in which the Contractor's intellectual property rights are vested in, or as the case may be the products intellectual property rights are vested in with regard to the use of which the Contractor has acquired the rights of use. This concerns for example (but is not limited to): computer programs, system designs, working methods, advice, (model) contracts, reports, templates, macros and other intellectual work.
The Client is not permitted to provide third parties with the products, referred to in the second subclause, without prior permission in writing from the Contractor. This does not apply in the event that the Client wishes to acquire an expert opinion regarding the execution of the Work by the Contractor. In that event the Client will impose the Client's obligations on the basis of this article on the third parties engaged by the Client.

9. Force Majeure

If parties cannot, cannot in a timely manner, or cannot properly fulfil the obligations under the Agreement resulting from force majeure within the meaning of Section 75 Book 6 of the Civil Code, these obligations will be suspended until the time when parties at a later date will be able to fulfill these in the agreed manner.
In the event that the situation as referred to in the first subclause occurs, parties will have the right to terminate the Agreement, wholly or in part, in writing and with immediate effect, without the right to any compensation existing in all other respects.
If at the occurrence of the force majeure situation the Contractor has already partially fulfilled the agreed obligations, the Contractor will be entitled to interim separate invoicing of the executed Work and the Client must pay this invoice as if it concerned a separate transaction.

10. Fee and Costs

The Work executed by the Contractor will be charged to the Client, on the basis of time spent and costs incurred, unless parties have agreed expressly otherwise such as for example payment of a fixed price. The payment of the fee will not be depending on the result of the Work, unless agreed otherwise in writing. The travel time and accommodation costs for the purpose of the Work will be charged separately.
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.
The Contractor has the right to require an advance payment from the Client. The failure to make the advance payment (in a timely manner) can be a reason for the Contractor to (temporarily) suspend the Work until the time when the Client has completely fulfilled the payment obligations. The costs caused by the delay can be charged to the Client in accordance with the rates that are usually at that time.
If after the coming into effect of the Agreement, but prior to the entire execution of the Assignment, fees or prices are changed, the Contractor will have the right to adjust the agreed rate accordingly, unless expressly agreed otherwise.
If this is required by law, turnover tax will be charged separately over all amounts owed by the Client to the Contractor.
If an amount is recorded per Agreement, the Contractor will be entitled to charge a rate above this per worked unit, if and insofar as the Work exceeds Work foreseen in the Agreement, which rate the Client will also owe in that case.

11. Payment

Payment by the Client of the amounts owed to the Contractor must take place, without the Client having any right to any deduction, reduction, suspension, or setoff, within 30 days after the invoice days, unless agreed otherwise. The day of payment is the day of the transfer of the amount owed to the Contractor's account.
If the Client has not paid within the period referred to in the first subclause, the Client will be in default by operation of law and the Contractor will be entitled to charge the statutory (commercial) interest from that time.
If the Client has not paid within the period referred to in the first subclause, the Client will be obliged to payment of all judicial and extrajudicial (collection) costs actually incurred by the Contractor. The reimbursement of the costs incurred will not be limited to any order to pay costs recorded by the court.
In the event of a jointly provided Assignment the Clients will be jointly
and severally liable for the payment of the invoice amount and the interest and costs owed.
If the financial position or the payment record of the Client gives cause for this in the opinion of the Contractor, or if the Client omits to make an advance payment, or to pay an invoice within the payment term set out for this, the Contractor will be entitled to require that the Client promptly provides (additional) security in a form to be determined by the Contractor. If the Client omits to provide the required security, the Contractor will be entitled, without prejudice to General Terms and Conditions of Berkenrode Audit B.V. BAv1.0 25juni2018 3 the Contractor's other rights, to immediately suspend further performance of the Agreement, and all that which the Client owes to the Contractor, on whatsoever basis, will be immediately due and payable.

12. Periods

If a period/date has been agreed between the Client and the Contractor within which the Assignment must be executed and the Client omits to: (a) make an advance payment - if agreed - or (b) make the necessary Documents available in a timely manner, and completely, in the required form and in the required manner, the Client and the Contractor will enter into consultation regarding a new period/date within which the Assignment must be executed.
Periods within which the Work must be completed are only to be deemed to be a final deadline if this has been agreed expressly and in so many words (in writing) between the Client and the Contractor. Any exceeding of such a period therefore will not result in an (attributable) failure on the part of the Contractor and consequently will not result in any ground for the termination of the Agreement or in any ground for compensation.

13. Complaints

Complaints with regard to the executed Work and/or the submitted amount must be made known in writing to the Contractor, within 30 days after the date of dispatch of the documents and/or the invoice or information, which the Client complains about, or as the case may be within 30 days after the discovery of the defect, if the Client demonstrates that the defect could not reasonably have been discovered earlier.
Complaints as referred to in the first subclause, will not suspend the Client's payment obligation, with the exception of insofar as the Contractor has made it known that the Contractor deems the complaints to be well-founded. The Client will be under no circumstances entitled, on the basis of a complaint with regard to a specific service, to postpone payment or to refuse to make payments for other services provided by the Contractor, to which the complaint does not relate to.
In the event of a complaint that was justifiably submitted, the Contractor will have the choice between adjustment of the fee charged, free of charge improvement, or execution once again of the rejected Work, or not to (or no longer) execute the Assignment, wholly or in part, in exchange for a refund pro rata the fee already paid by the Client.
If the complaint is not submitted within the period set out in article 13.1, all the Client's rights related to the complaint will lapse.

14. Liability and Indemnities

The Contractor will not be liable for damage on the part of the Client that has arisen due to the fact that the Client has provided no, inaccurate or incomplete Documents to the Contractor, or due to the fact that these have not been provided in a timely manner. This also includes the situation in which the Contractor is unable to file the annual report and accounts with the Chamber of Commerce within the statutory period as a result of acts or omissions (on the part) of the Client.
The Contractor will not be liable for any indirect damage, including: lost profit, lost savings, loss due to business interruption and any other consequential loss, or indirect damage, which is the result of not, or not in a timely manner, or unsatisfactory, performance by the Contractor.
The liability on the part of the Contractor is limited to compensation of direct damage that is the direct result of (a connected series of) attributable failure(s) in the execution of the Assignment. This liability for direct damage is limited to the amount, which according to the Contractor's liability insurer will be paid for the event concerned, plus any amount of the excess which under the policy conditions is not borne by the insurer and is on the basis of the insurance to be borne by the Contractor. Direct damage is - inter alia - taken to mean: the reasonable costs incurred to establish the cause and extent of the damage; the reasonable costs incurred to ensure that the Contractor's performance conforms to the Agreement, and the reasonable costs incurred for the prevention and limitation of the damage.
If, for whatsoever reason, the liability insurer does not proceed with payment - as referred to in subclause 3 of this article - the liability on the part of the Contractor will be limited to the amount of the fee charged for the execution of the Assignment. If the Assignment concerns 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, which was charged to the Client in the twelve months prior to the arising of the damage. Under no circumstances will the total compensation of the damage on the basis of this subclause amount to more than € 300,000 per attributable failure, unless parties - having regard to the scope of the Assignment, or the risks accompanying the Assignment - see reason at the entering into of the Agreement to derogate from this maximum.
A connected series of attributable failures will apply as one (1) attributable failure.
The limitations of liability included in this article do not apply if and insofar as there is intention or wilful recklessness on the part of the Contractor or the Contractor’s managerial staff.
The Client will be obliged to take damage limitation measures. The Contractor has the right to reverse or limit damage by means of remedying or improvement of the executed Work.
The Client indemnifies the Contractor against claims by third parties due to damage caused because the Client has not provided Documents or has provided inaccurate or incomplete Documents to the Contractor.
The Client indemnifies the Contractor against claims by third parties (including Employees of the Contractor and third parties engaged by the Contractor) who suffer damage related to the execution of the Assignment, which is the result of the acts or omissions on the part of the Client or is the result of unsafe situations in the Client's company or organisation.
The provisions of subclauses 1 up to and including 9 of this article relate to the contractual as well as the non-contractual liability of the Contractor towards the Client.

15. Termination

The Client and the Contractor can at any time terminate the Agreement (in the interim) with immediate effect without due regard to a notice of termination period, by means of notice in writing to the other party. If the Agreement terminates before the Assignment is completed, the Client will owe the fee in accordance with the hours stated by the Contractor for the Work executed for the benefit of the Client.
If the Client proceeds with (interim) termination, the Contractor will have the right to compensation of loss resulting from lower capacity utilisation arisen on the Contractor's part and to be made plausible by the Contractor, reimbursement of additional costs that the Contractor has already incurred and reimbursement of costs ensuing from any cancellation of engaged third parties (such as - inter alia - any costs with regard to subcontracting).
If the Contractor proceeds with (interim) termination, the Client will have the right to cooperation from the Contractor during the transfer of the Work to third parties, unless there is intention or willful recklessness on the part of the Client as a result of which the Contractor is compelled to proceed with termination. It is conditional to the right of cooperation, as determined in this subclause, that the Client has paid all underlying outstanding advance payments or as the case may be all invoices.

16. Right of Suspension

The Contractor will be entitled, after careful balancing of interests, to suspend the fulfillment of the Contractor's obligations, including the handing over of Documents or other items to the Client or third parties, until the time when all due and payable claims against the Client have been paid in full.
The first subclause does not apply with regard to the Client's Documents, which have not (yet) been processed by the Contractor.

17. Expiry Periods

Insofar as these general terms and conditions do not determine otherwise, rights of claim and other entitlements of the Client on whatsoever basis against the Contractor related to the execution of the Work by the Contractor will lapse in any event after one year from the time when the Client became aware of or reasonably could have been aware of the existence of these rights and entitlements. This time limit does not concern the possibility to submit a complaint to the authority/authorities designated for the complaint handling and/or the Disputes Board.

18. Electronic Communication and Electronic Filing of the Annual Report and Accounts

During the execution of the Assignment the Client and the Contractor can communicate with each other by means of electronic resources and/or by making use of electronic storage (such as Cloud applications). Except for insofar as agreed otherwise in writing, parties may assume that the sending of correctly addressed fax General Terms and Conditions of Berkenrode Audit B.V. BAv1.0 25juni2018 4 messages, emails (including emails sent over the internet) and voicemail messages, regardless of whether these contain confidential information or documents related to the Assignment, will be mutually accepted. The same applies to other means of communication used or accepted by the other party.
The Client and the Contractor will not be liable towards each other for damage that might ensue for one or the other of them, resulting from 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 of delivery of electronic communication, omissions, distortion, interception, or manipulation of electronic communication by third parties, or by software/equipment used for the sending, receiving or processing of electronic communication, transmission of viruses and the not, or not properly functioning of the telecommunication network or other resources required for electronic communication, except for insofar as the damage is the result of intention or gross negligence. The above also applies to the use that the Contractor makes thereof in the Contractor's contact with third parties.
In addition to the previous subclause the Contractor does not accept any liability for any damage arisen due to or related to the electronic sending of the (electronic) annual report and accounts and the digital filing thereof with the Chamber of Commerce.
The Client as well as the Contractor will do or omit all that which can reasonably be expected from each of them to prevent the occurrence of the aforesaid risks.
The data-extracts from the sender's computer system will provide conclusive evidence of (the contents of) the electronic communication sent by the sender until the time when proof to the contrary has been provided by the recipient.
The provisions of Article 14 apply accordingly.

19. Miscellaneous Provisions

If the Contractor executes Work at the Client's location the Client will guarantee a suitable workplace, which complies with the statutory working conditions standards set out and other applicable regulations with regard to working conditions. The Client must ensure that the Contractor is in that case provided with office space and other facilities, which in the opinion of the Contractor, are necessary or useful for the performance of the Agreement and which comply with all (statutory) requirements to be set out for this. With regard to the (computer) facilities made available, the Client will be obliged to ensure continuity inter alia by means of adequate back-up, security and virus control procedures. The Contractor will apply virus control procedures when the Contractor makes use of the Client's facilities.
The Client will not employ or approach Employees involved in the execution of the Work, to commence employment for the Client, whether or not temporarily, directly or indirectly, or as the case may be, whether or not directly or indirectly, to execute work for the benefit of the Client, whether or not in salaried employment, during the term of the Agreement or any extension thereof and during 12 months thereafter.
These General terms and conditions have been drawn up in the Dutch as well as in the English language. In the event of a difference or conflict between the English and the Dutch text, the Dutch text will be binding.
The provisions in the Assignment, which must expressly, or by their nature, remain in force also after the end or the termination of the Assignment, will remain in force after the end or termination, including articles 8, 10, 11, 14, 19 subclause 2 and 20.

20. Applicable Law and Choice of Forum

The Agreement is governed by Dutch law.
All disputes will be resolved by the court of competent jurisdiction in the district in which the Contractor is established.
The provisions of subclause 1 and 2 of this article will not affect the possibility on the part of the Client to submit a dispute to the Disputes Board and/or to submit a complaint to the Contractor personally, the Accountancy Division (disciplinary complaint) or the Complaints Committee (right of complaint).

21. Repair Clause Voidness

If any provision of these general terms and conditions, or under the underlying Assignment/Agreement, might be wholly or in part null and void and/or invalid and/or unenforceable, as a result of any statutory regulation, judicial decision, or otherwise, this will have no consequences whatsoever for the validity of all other provisions of these general terms and conditions or the underlying Assignment/Agreement.
If no reliance can be made on any provision in the Assignment, or on any part of the Assignment, the remaining part of the Assignment will remain in full effect, always provided that the provision in the part on which no reliance can be made, will be deemed to have been adjusted in such a manner that reliance thereon will be possible, whereby the intention of parties with regard to the original provision or the original part will be maintained as much as possible.