Algemene voorwaarden CapsNobel MKB N.V.
Model general terms and conditions SRA July 2019
In these general terms and conditions, the following terms shall have the following meanings:
- Principal: the natural or legal person who has placed an order with the Contractor.
given to perform Work.
- Contractor: the (accountancy) firm that concludes the Agreement and applies these General Terms and Conditions. All assignments shall be deemed to have been given exclusively to the (Auditor’s) Practice and not to any person associated with the (Auditor’s) Practice. All Agreements are therefore concluded with the Contractor. This also applies if it is the Principal’s intention that an assignment be performed by a particular person or persons connected to the (accountancy) practice. Articles 7:404 and 7:407 paragraph 2 of the Dutch Civil Code are explicitly excluded from application.
- Work: all work commissioned or carried out by the Contractor on any other basis. The foregoing applies in the broadest sense of the word and includes, in any event, the work as stated in the order confirmation.
- Documents: all goods made available by the Principal to the Contractor, including documents or data carriers, as well as all goods produced or collected by the Contractor in the context of the performance of the assignment, including documents or data carriers.
- Agreement/Assignment: every agreement between the Principal and the Contractor to perform Work by the Contractor for the Principal in accordance with the provisions set out in the confirmation of the assignment.
- These general terms and conditions apply to: all offers, quotations, assignments, legal relationships, and agreements, by whatever name, in which the Contractor undertakes/will undertake to perform Work for the Principal, as well as to all Work arising from these for the Contractor.
- Deviations from, and additions to, these General Terms and Conditions shall only be valid if expressly agreed in writing in, for example, a (written) agreement or (a further) confirmation of order.
- In the event that these general conditions and the order confirmation contain mutually contradictory conditions, the conditions included in the order confirmation shall apply with regard to the contradiction.
- The Contractor explicitly rejects the applicability of the Principal’s general terms and conditions.
- The underlying Assignment/Agreement – together with these general terms and conditions – represents the complete arrangements between the Principal and the Contractor regarding the Work for which the Agreement is concluded. All previous agreements or proposals made between the parties in this regard shall lapse.
- The Principal, with whom an Agreement has once been concluded under these general terms and conditions, accepts the applicability of these general terms and conditions to all subsequent offers of the Contractor and Agreements between the Principal and the Contractor.
- If one or more provisions of these general terms and conditions are invalid or are annulled, the remaining provisions of these general terms and conditions shall remain fully applicable. If any provision of these general terms and conditions or of the Agreement is not legally valid, the parties will negotiate about the content of a new provision, which provision will approach the content of the original provision as closely as possible.
- Provisions in the Agreement or these General Terms and Conditions that are expressly or by their nature intended to survive the expiry or termination of the Agreement will remain in effect after such expiry or termination, including Articles B, G, I, J, L, P and R (2).
C. Commencement and duration of the Agreement
- Each Agreement is only concluded and commences at the moment that the order confirmation signed by the Principal has been returned to the Contractor and has been signed. The confirmation is based on the information provided by the Principal to the Contractor at the time. The confirmation shall be deemed to set out the Agreement correctly and in full.
- The parties are free to prove the conclusion of the Agreement by other means.
- Each Agreement is entered into for an indefinite period of time unless it follows from the nature, content, or tenor of the assignment given that it has been entered into for a definite period of time.
D. Principal information
- The Principal is required to make all information and Documents which the Contractor believes are necessary for the correct performance of the Agreement available to the Contractor in time, in the desired form, and in the desired manner. This includes the documents which the Contracted Party claims to require in the context of establishing the Principal’s identity. The Principal shall provide the Contractor with the information required to establish its identity prior to the performance of the Agreement.
- The Contractor is entitled to suspend the fulfillment of the Agreement until the Principal has met the obligation mentioned in the previous paragraph.
- The Principal is required to inform the Contractor without delay of any facts and circumstances that may be relevant in connection with the performance of the Agreement.
- The Principal guarantees the accuracy, completeness, and reliability of the information and Documents made available to the Contractor by it or on its behalf, even if they originate from third parties. Octrooibureau Novopatent shall not be liable for any damage, of whatever nature, arising from the incorrectness and/or incompleteness of the information supplied to Octrooibureau Novopatent by the Principal.
- The extra costs and extra fees resulting from the delay in the performance of the Agreement caused by the fact that the required information was not provided, not provided in time, or not provided properly, will be borne by the Principal.
- If and to the extent that the Principal so requests, the Documents made available will be returned to the Principal, subject to the provisions under O. The Principal shall bear the costs of such return of Documents.
E. Execution of the Agreement
- The Contractor determines the manner in which and by which person(s) the Agreement will be performed. If possible, the Contracted Party will take into account any timely and responsible instructions given by the Principal regarding the execution of the Agreement.
- The Contractor will perform the Work to the best of his ability and as a professional acting with due care. However, the Contractor cannot guarantee the achievement of any intended result.
- The Contractor is entitled to have certain Work performed by a person or third party designated by the Contractor without notification to and explicit consent from the Principal if the Contractor considers this to be desirable. The costs of this appointed person or third party will be charged to the Principal.
- The Contractor will perform the Agreement in accordance with the rules of conduct and professional rules that apply to him, which form part of the Agreement, and with the statutory requirements. A copy of the rules of conduct and professional rules applicable to the Contractor will be sent to the Principal upon request. The Principal shall respect the obligations arising from these rules of conduct and professional rules and from the law for the Contractor and for those working for or on behalf of the Contractor.
- In the event that during the term of the Agreement Work is performed for the profession or business of the Principal which is not covered by the Work to which the Agreement relates, this Work will be deemed to have been performed on the basis of separate Agreements.
- Any periods specified in the Agreement by which the Work must be performed are only approximate and are not to be regarded as strict deadlines. Exceeding such a period, therefore, does not constitute an attributable shortcoming on the part of the Contractor and consequently does not constitute grounds for rescinding the Agreement. Deadlines by which the Work must be completed are only to be regarded as firm dates if this has been explicitly agreed between the Principal and the Contractor in as many words.
- The execution of the Agreement is not – unless explicitly stated otherwise in writing – specifically aimed at the detection of fraud. If the work results in indications of fraud, the Contractor shall report this to the Principal. In doing so, the Contractor is bound by the applicable laws and regulations and by the regulations and guidelines issued by the various professional organisations.
F. Secrecy and exclusivity
- The Contractor is obliged to maintain confidentiality vis-à-vis third parties who are not involved in the performance of the Agreement. This confidentiality relates to all information of a confidential nature made available by the Principal and the results obtained by processing it. This secrecy will not apply to the extent that statutory or professional measures, including but not limited to the obligation to report arising from the Money Laundering and Terrorist Financing (Prevention) Act and other national or international regulations with a similar scope, impose an obligation to provide information on the Contractor, or to the extent that the Principal has released the Contractor from the obligation to maintain secrecy. This provision also does not prevent confidential collegial consultation within the Contractor’s organisation, to the extent that the Contractor deems this necessary for the proper performance of the Agreement or for careful compliance with statutory or professional obligations.
- The Contractor is entitled to use the numerical results obtained after processing for statistical or comparative purposes, provided that these results cannot be traced back to individual Principals.
- The Contractor is not entitled to use the information made available to him by the Principal for any purpose other than that for which it was obtained, except as provided for in paragraph 2 and in the event that the Contractor acts on his own behalf in disciplinary, civil, administrative or criminal proceedings in which these documents may be relevant. If the Contractor is accused of having committed or participated in an offense or felony, it is entitled to disclose Documents from the Principal to the Tax Inspector or to the judge, if disclosure is necessary in the context of conducting a defence by the Contractor.
- Without the Contractor’s prior written permission, the Principal is not permitted to publish or otherwise make available to third parties the content of advice, opinions or other statements made by the Contractor, whether or not in writing, unless this ensues directly from the Agreement, is done to obtain an expert opinion regarding the Contractor’s Work in question, or the Principal has a statutory or professional obligation to publish, or the Principal is acting on his own behalf in disciplinary, civil or criminal proceedings.
- In the event that the Principal violates the prohibition set out in the previous paragraph, the Principal will owe the Contracted Party an immediately due and payable penalty of EUR 25,000, without prejudice to the Contracted Party’s (statutory) right to claim damages and without prejudice to the Contracted Party’s right to fulfil the Agreement.
G. Intellectual property
- The intellectual property rights to everything that the Contractor uses and/or makes available in the context of the performance of the Agreement are vested in the Contractor or its licensors. Nothing in the Agreement or these terms and conditions is intended to transfer any intellectual property rights, unless expressly provided otherwise in writing.
- The Principal is explicitly forbidden to provide, reproduce, publish or exploit to third parties anything to which the Contractor’s intellectual property is entitled, including but not limited to computer programs, system designs, working methods, advice, (model) contracts, and other intellectual products, all in the broadest sense of the word, with or without the involvement of third parties.
- The Contractor may grant the Principal a right of use in respect of software and the like. This right of use always ends when the Agreement ends, unless otherwise agreed in writing. After the end of the right of use, the Principal must cease using the software, etc. and keep it there. The Principal shall remove any software from its systems.
- The Contractor is entitled to take technical measures to protect its rights (of intellectual property) or those of its licensors. The Customer is expressly forbidden to remove or evade these measures.
- The Principal is not permitted to provide (resources of) these products to third parties other than to obtain an expert opinion about the Contractor’s Work. The Principal shall in that case impose its obligations under this article on the third parties engaged by it.
- In the event that the provisions included in paragraphs 2, 3, 4 and/or 5 of this article are violated, the Principal will owe the Contracted Party an immediately due and payable penalty of EUR 25,000, without prejudice to the Contracted Party’s (statutory) right to claim damages and without prejudice to the Contracted Party’s right to fulfilment of the Agreement.
H. Force majeure
- If the Contractor is unable to fulfil its obligations under the Agreement or is unable to do so properly or in time for a reason that cannot be attributed to it, including but not limited to employee sickness, breakdowns in the computer network, and other interruptions of the normal conduct of business within its enterprise, these obligations will be suspended until the time the Contractor is able to fulfil them in the agreed manner.
- The Principal has the right, in the event that the situation referred to in the first paragraph occurs, to terminate the Agreement in whole or in part in writing after 14 days from the start of the force majeure situation, without any right to compensation.
- Insofar as the Contracted Party has already partially fulfilled its obligations under the Agreement or will be able to fulfil these at the time when the force majeure occurs, the Contracted Party will be entitled to separately charge for the part already fulfilled or the part to be fulfilled respectively. The Principal is obliged to pay this invoice.
- The Contractor is entitled to suspend the performance of his Work before the start of the Work and in the interim until the Principal has paid an advance for the work to be performed, to be reasonably determined by the Contractor, or has furnished security for this. An advance payment paid by the Principal shall, in principle, be set off against the final invoice.
- The Contractor’s fee is not dependent on the result of the Work performed, unless agreed otherwise in writing.
- The Contractor’s fee can consist of a pre-determined amount per Agreement and/or can be calculated on the basis of rates per unit of time worked by the Contractor and is then due as the Contractor performs Work for the Principal. Travel and accommodation costs are charged separately.
- If an amount fixed by Agreement has been agreed, the Contractor is also entitled to charge a rate per unit of time worked, if and in so far as the Work exceeds the Work provided for in the Agreement, which amount the Principal will then owe as well.
- If wages and/or prices change after the Agreement’s conclusion but before the Commission’s full implementation, then the Contractor is entitled to adjust the agreed rate accordingly, unless the Principal and the Contractor have made other agreements in this regard.
- The Contractor’s fee, if necessary plus disbursements and invoices from third parties called in, including any turnover tax due, will be charged to the Principal on a monthly, quarterly or annual basis, or after completion of the Work.
- The hours recorded in the Contractor’s time registration system shall constitute conclusive evidence of the hours worked by the Contractor for the Principal until such time as counter-evidence is provided by the Principal.
- Payment of the invoice amount by Principal shall take place within the agreed terms, but in no case later than 30 days after invoice date, in Euro, at the office of Contractor or by means of payments in favour of a bank account to be indicated by Contractor and, insofar as the payment concerns work, without any right to discount or setoff.
- If the Principal fails to pay within the period referred to in paragraph 1, or within the further agreed period, he shall be in default by operation of law and Contractor shall be entitled, without any further demand or notice of default being required, to charge the Principal the statutory (commercial) interest on the invoiced amount from the due date until the date on which payment is made in full, all this without prejudice to Contractor’s further rights.
- All costs incurred as a result of judicial or extrajudicial collection of the claim shall be borne by the Principal, even if these costs exceed the judicial order to pay the costs of the proceedings. These are at least the costs over the principal sum in accordance with the Decree on compensation of extrajudicial collection costs of 1 July 2012 (Bulletin of Acts and Decrees 2012/141), with a minimum of € 40.
- Octrooibureau Novopatent shall be entitled to have payments made by the Principal go first of all to reduce the costs as referred to in paragraph 3, then to reduce the interest still due, and finally to reduce the principal sums due and the longest outstanding interest.
- If, in the opinion of the Contractor, the Principal’s financial position or payment record so warrants, the Contractor is entitled to require the Principal to provide (additional) security in a form to be determined by the Contractor. If the Principal fails to furnish the requested security, the Contractor is entitled, without prejudice to its other rights, to suspend the further fulfilment of the Agreement with immediate effect and all that the Principal owes the Contractor on any account whatsoever will be immediately due and payable.
- In the event of liquidation, bankruptcy, or suspension of payment of Principal, the claims against Principal shall become immediately due and payable.
- In the event that instructions are given jointly, the Principals are jointly and severally liable for the payment of the invoice amount, the interest, and costs due insofar as the Work was performed for the joint Principals.
- Complaints relating to the work performed and/or the invoice amount must be made known to Octrooibureau Novopatent in writing within 30 days of the date of dispatch of the documents or information about which the Principal is complaining, or within 30 days of discovery of the defect, if the Principal is able to demonstrate that it could not reasonably have discovered the defect earlier, specifying the nature and grounds for the complaints.
- Complaints as referred to in the first paragraph will not suspend the Principal’s payment obligation, unless the Contractor has indicated that it considers the complaint to be justified.
- The Contractor must be given the opportunity to investigate the Principal’s complaint.
- In the event that the complaint is justified, the Contractor can choose between adjusting the fee charged, improving or performing the rejected Work again free of charge, or not (or no longer) performing the assignment in full or in part against a proportionate refund of the fee already paid by the Principal.
- If the complaint is not lodged in time, all rights of the Principal in connection with the complaint lapse.
L. Liability and indemnity
- The Contractor is only liable to the Principal for damage that is the direct result of an (interrelated series of) attributable failure(s) in the performance of the Agreement. This liability is limited to the amount paid out by the Contractor’s liability insurer in the case in question, increased by any excess to be borne by the Contractor under the insurance policy. If, for whatever reason, the liability insurer does not pay out, the Contractor’s liability will be limited to the amount of the fee charged for the performance of the Agreement. If the Agreement is a continuing performance contract with a term of more than one year, the amount referred to in the previous sentence will be set at twice the amount of the fee charged to the Principal in the twelve months preceding the occurrence of the damage.
Under no circumstances will the total compensation for damage on the grounds of this article exceed € 300,000 per event, whereby a series of related events is regarded as one event, unless – in view of the scope of the assignment or the risks involved – the parties see reason to deviate from this maximum when entering into the Agreement.
- Except in the case of gross negligence or wilful misconduct on the part of the Contractor, the Contractor shall in any event not be liable for:
- damage suffered by the Principal or third parties as a result of the Principal providing the Contractor with inaccurate, incomplete or untimely Documents, data or information or as a result of any other act or omission on the part of the Principal, including a situation in which the Contractor is unable to file the annual accounts with the Chamber of Commerce within the statutory period as a result of an act or omission on the part of the Principal;
- losses incurred by the Principal or third parties that are the result of acts or omissions by auxiliary persons engaged by the Contractor (not including employees of the Contractor), even if these persons are employed by an organisation affiliated with the Contractor;
- business, indirect or consequential losses suffered by Principal or third parties, including but not limited to stagnation in the normal course of business in Principal’s company.
- A further condition for liability is that the Principal notifies the Contractor of any shortcoming in writing immediately after its discovery and the Contractor is at all times entitled, if and insofar as possible, to remedy or limit the Principal’s loss by repairing or improving the defective product.
- The Contractor is not liable for any damage to or the destruction of Documents during transport or dispatch by post, irrespective of whether the transport or dispatch takes place by or on behalf of the Principal, the Contractor or third parties. During the execution of the Assignment, the Principal and the Contractor may communicate with each other by electronic means at the Principal’s request. The Principal and the Contractor are not liable towards each other for damage that may arise for one or both of them as a result of the use of electronic means of communication, including – but not limited to – damage resulting from non-delivery or delayed delivery of electronic communications by third parties or by software/hardware used for transmitting, receiving or processing of electronic communications, transmission of viruses and the non-functioning or improper functioning of the telecommunications network or other resources required for electronic communications, except insofar as the damage is the result of intent or gross negligence. Both the Principal and the Contractor will do or omit to do everything that may reasonably be expected of each of them in order to prevent the occurrence of the aforementioned risks. The data extracts from the sender’s computer systems are binding evidence for (the contents of) the electronic communication sent by the sender until the recipient has furnished proof to the contrary.
- The Principal indemnifies the Contractor against all claims from third parties, including shareholders, directors, supervisory directors, and employees of the Principal, as well as affiliated legal entities and enterprises and others involved in the Principal’s organisation, which are directly or indirectly related to the fulfilment of the Agreement. The Principal shall indemnify the Contractor in particular against claims from third parties for damage caused by the Principal providing the Contractor with incorrect or incomplete information, unless the Principal proves that the damage is not related to culpable acts or omissions on his part, or is caused by intent or gross negligence on the part of the Contractor. The foregoing shall not apply to assignments to audit the annual accounts, as referred to in Section 393 of Book 2 of the Netherlands Civil Code.
- The Principal shall indemnify the Contractor against all possible third party claims in the event that the Contractor is compelled by law and/or professional rules to abandon the Assignment and/or is compelled to cooperate with government agencies that are entitled to receive information, whether solicited or unsolicited, that the Contractor has received from the Principal or third parties in the fulfilment of the Assignment.
- All limitations on the Contractor’s liability included in this article apply in full to the person(s) actually performing the Work for the Principal. Actual performers may also invoke these provisions against the Principal.
Unless stipulated otherwise in these general terms and conditions, rights of action and other powers of the Principal vis-à-vis the Contractor on whatever account in connection with the performance of Work by the Contractor lapse in any event one year after the Principal became aware or could reasonably have become aware of the existence of these rights and powers. This term does not apply to the possibility of submitting a (disciplinary) complaint to the body/bodies designated to handle complaints and/or the Disputes Board.
- The Principal and the Contractor may terminate the Agreement at any time with immediate effect by giving notice. If the Agreement ends before the Commission has been completed, the provisions under I. second and third paragraphs shall apply and the fee for the work performed and the costs incurred by the Contracted Party shall in any event be reimbursed.
- Notice of termination must be given to the other party in writing.
- If and to the extent that the Contractor terminates the Agreement by giving notice, he is obliged to inform the Principal of the reasons for the termination and to do everything that the circumstances demand in the Principal’s interest.
O. Right to Suspend
The Contractor is entitled to suspend the fulfilment of all its obligations, including the surrender of Documents or other items to the Principal or to third parties, until such time as all due and payable claims against the Principal have been settled in full. The Contractor may only refuse to issue Documents after carefully weighing up the interests involved.
P. Applicable law and choice of forum
- All Agreements between the Principal and the Contractor to which these general terms and conditions apply are governed by Dutch law.
- All disputes relating to Agreements between the Principal and the Contractor to which these general terms and conditions apply shall be settled by the competent court in the district in which the Contractor is domiciled.
- Contrary to the provisions of paragraph 2, the Principal and the Contracted Party may opt for another dispute resolution method.
- The provisions of paragraphs 1, 2, and 3 of this article are without prejudice to the Principal’s option of submitting a dispute to the Dispute Adjudication Board and/or a complaint to the body/bodies designated to handle complaints.
Q. Electronic communication and electronic filing of financial statements
- During the execution of the Assignment, the Principal and the Contractor may 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 sending of correctly addressed faxes, e-mails (including e-mails sent via the Internet), and voicemail messages, irrespective of whether they contain confidential information or documents relating to the Assignment, will be mutually accepted. The same applies to other means of communication used or accepted by the other party.
- The Principal and the Contractor are not liable towards each other for damage that may arise for one or both of them as a result of the use of electronic means of communication, networks, applications, electronic storage, or other systems, including – but not limited to – damage resulting from the non-delivery or delayed delivery of electronic communications, omissions distortion, interception or manipulation of electronic communications by third parties or by software/hardware used for transmitting, receiving or processing of electronic communications, transmission of viruses and non-functioning or malfunctioning of the telecommunications network or other resources required for electronic communications, except in so far as the damage is the result of intent or gross negligence. The above also applies to the use which the Contractor makes of it in its contacts with third parties.
- In addition to the previous paragraph, the Contractor accepts no liability for any loss arising as a result of or in connection with the electronic transmission of (electronic) annual accounts and their digital filing with the Chamber of Commerce.
- Both the Principal and the Contractor will do or omit to do everything that may reasonably be expected of each of them in order to prevent the occurrence of the aforementioned risks.
- The data extracts from the sender’s computer systems are binding evidence for (the contents of) the electronic communication sent by the sender until the recipient has furnished proof to the contrary.
- The provisions of Article L shall apply mutatis mutandis.
R. Other provisions
- If Provider carries out work on location of Principal, Principal shall ensure a suitable workplace, which complies with the statutory working conditions standards and other applicable regulations regarding working conditions. The Principal must ensure that the Contractor is provided with office space and other facilities which the Contractor deems necessary or useful for the fulfilment of the Agreement and which meet all the relevant (statutory) requirements. With regard to the (computer) facilities made available, Principal is obliged to ensure continuity by means of adequate back-up, security, and virus control procedures.
- The Principal will not hire or approach any employees of the Contractor who are involved in performing the Work in order to be employed by the Principal, temporarily or permanently, directly or indirectly, or to perform work for the Principal, directly or indirectly, as an employee or otherwise, during the term of the Agreement or any extension thereof and for 12 months afterwards.