Model General terms and condition NBA (Dutch professional organisation for Accountants) 2017 ©

Deposited at the Registry of the district court of Amsterdam on 19 June 2017 under the number 39/2017 VERSION 1

Article 1. DEFINITIONS

All definitions found below that are written with a capital letter have, within the context of these general terms and conditions, the following meaning:

Professional regulations: the professional and behavioural rules to which all accountants must conform because of their registration in the registry of accountants of the NBA (Dutch professional organisation for Accountants).
Documentation: all information and data supplied by the Client to the Processor; all in regard to the execution of the Assignment / Agreement by Processor created or collected data; and all other information that is of any relevance for the execution or completion of the Assignment. Before mentioned information can whether or not be stored on corporal or non-corporal data carriers and might be housed at third parties.
Employee: a natural person working or associated with the Processes, whether or not on the grounds of a contract;
Assignment / Agreement: the agreement of assignment, in which Processor commits towards Client to perform a certain amount work.
Client: the natural person or the legal person who has given the Assignment to Processor to perform a certain amount of Work.
Processor: the office that has accepted the Assignment. All Assignments will exclusively be accepted and processed by the office, not by or because of and individual Employee, also when the Client has given the Assignment in silence or explicitly with the meaning that the execution would be done by a certain employee or employees. Articles 7:404, 7:407 lid 2 and 7:409 BW are expressly excluded.
Work: any by Processor on behalf of Client to be processed work and operations for which Assignment has been given and that has been accepted by Processor, as well as all subsequent work and operations for Processor.

Article 2. APPLICABILITY

These general terms and conditions are applicable to: all offers, quotations, Assignments, legal relations and Agreements, however called, where Processor commits / will commit to executing Work for the Client, as well as all subsequent work for Processor.
Derogations and additions to the Assignment and or these general terms and conditions are only valid when they have been agreed in writing in, for example, an Agreement in writing or another confirmation of assignment.
In case any condition in these general terms and conditions diverts from a condition in the assignment confirmation, the condition in the assignment confirmation which has been included about inconsistencies applies.
The general terms and conditions also apply to any additional or follow-up assignments.
The applicability of the general terms and conditions from Client is hereby dismissed by Processor.
From these general terms and conditions can also invoke those natural and legal persons who, directly or indirectly, in any manner whatsoever, whether or not on the basis of a contract of employment, at the service to the Client by or on behalf of the Processor.

Article 3. CLIENT DATA

Client shall be obliged to supply all documentation, in the required format, in the right way and on time, which Contractor needs in his view to adequately execute the given Assignment, to Contractor. Contractor decides what is meant by on time, the required format and the right way.
Client is responsible for the correctness, completeness and reliability of the by him supplied documentation, also if it originates from a third party, in so far as the nature of the Assignment doesn’t develop otherwise.
Client absolves Processor from damage as a result of incorrect or incomplete Documentation.
Any extra costs and manhours, as well as other damage for Processor due to not or not in time or not properly by Client supplied necessary Documentation for the execution of Work will be charged to and is the responsibility of Client.
In case of electronic transmission of information – including (but not limited to) tax returns, financial statements, reports – of (and assigned by) Client sent by Processor to third parties, Client will be regarded as the party who signs and sends the relevant information.
Processor has the right to adjourn the execution of the Assignment until the moment that Client has fulfilled the obligations and conditions as referred to in paragraph 1 above.
When the first request in writing of Client, Processor will return all original, by Client supplied Documentation to Client.

Article 4. EXECUTION OF ASSIGNMENT

Processor executes the Assignment to the best of his ability with due observance of the applicable professional laws and regulations.
Processor decides the way in which the Assignment will executed and by what employee(s).
Processor has the right to have Work performed by a third party to be designated by Processor.

Article 5. PROFESSIONAL LAWS AND REGULATIONS

Client promises full cooperation with the obligations for Processor that arise from the applicable professional laws and regulations.
Processor takes appropriate measures to protect personal data and other confidential information that comes from Processor. Processor will inform Employees and optional third parties about the confidential nature of the information. Processing of personal data by Processor takes place in accordance with the applicable (inter)national professional laws and regulations in the field of the protection of personal data.
Client is aware that Processor, in some cases, on the basis of (inter)national professional laws and regulations is required to publicise confidential information of Client. Insofar as is necessary, Client hereby gives permission and promise of cooperation for publicising as mentioned, including (but not exclusively) in cases when Processor:
In professional laws and regulations described and during the execution of his Work announced, performed or proposed unusual transactions are to be reported to the established governmental authorities;
In certain situations has to report fraud;
Is required to investigate the (identity of) Client and/or latter’s client.
Processor excludes all liability for damage arising at Client as a result of the compliance by Processor with the for latter applicable professional laws and regulations.
Parties will impose their obligations on the grounds of this article to the by them contacted third parties.

Article 6. INTELLECTUAL PROPERTY

The execution of the Assignment by Processor doesn’t include in the transfer of intellectual property rights which rest with Processor. All intellectual property rights that arise during, or stemming from, the execution of the Assignment, belong to Processor.
Client is expressly forbidden to expose, exploit or multiply products on which intellectual property rights of Processor stand as well as products on which intellectual property rights stand in reference to using them of which Processor has user charges. This concern for instance (but not exclusively): computer programs, system designs, working methods, advice, (model) contracts, reports, templates, macros and other intellectual creations.
Client cannot supply the products mentioned in article two to third parties without prior written consent from Processor. This does not apply in the case when Client would like to receive an expert opinion on the execution of the Work by Processor. Processor will, in that case, impose his obligations, on the grounds of this article, on the by latter contacted third party/parties.

Article 7. FORCE MAJEURE

If parties cannot, not properly or not in time fulfil their obligations from the Agreement as a result of force majeure within the meaning of art. 6:75 BW, obligations will be suspended until the moment that parties eventually are able to fulfil them in the manner as agreed upon.
If the situation as meant in article one arises, both parties have the right to entirely or partially and with immediate effect terminate in writing, though there is no right to any form of compensation.
In case Processor at the onset of the force majeure situation already partially has fulfilled his obligations, Processor is entitled to bill the work that has been done separately and in between and Client must pay the bill as if it were a separate transaction.

Article 8. HONORARIUM AND COST

The by Processer performed Work are charged to Client on the basis of spent time and cost made, unless parties have expressly has agreed differently upon the matter, for instance, by paying a set price. Payment of the honorarium is not dependent on the result of the Work unless else has been agreed upon in writing. Accommodation and travelling time in respect of the Work will be billed separately.
Besides the honorarium, the expenses made by Processor and the claims from by Processor contacted third parties will be charged to Client.
Processor has the right to ask Client a (partial) payment in advance. Not paying the advance (in time) can be a reason for Processor to (temporarily) suspend the Work.
If after concluding of the Agreement, but before the Assignment has been fully carried out, honoraria of costs change, Processor has the right to change the rate that was agreed upon, unless expressly else has been agreed upon.
In case it is legally required, turnover tax will be billed separately on all by Client owed to Processor due amounts.

Article 9. PAYMENT

Payment by Client of the due amounts owed to Processor should, without Client having the right to any deduction, discount, suspension or netting, be made within 30 days after the date of invoicing, unless else was agreed upon. The day of payment is day when the due amount is transferred to account of Processor.
If Client has not paid within the time limit mentioned in article 1, Client is defaulting by law and Processor has the right to from that moment on bill the legal commercial interest.
If Client has not paid within the time limit mentioned in article 1, Client is held to remunerating all by Contractor effectively made legal and non-legal collection cost. The remuneration of the costs made is not limited to the optional by the judge laid down cost penalty.
In case of a jointly-given Assignment, the Clients are jointly and severally liable for the payment the due amount, interests due and costs.
If the financial position or the payment behaviour of Client in the judgement of Processor may lead to it, or if Client fails to pay an advance or and instalment within the agreed term, Processor has the power to demand from Client that latter delivers additional security in a by Processor to be decided manner. If Client fails to deliver the demanded security, Processor has the power to, notwithstanding his other rights, immediately stop the execution the Agreement and everything Client owes Processor becomes immediately receivable.

Article 10. INSTALMENTS

If between Client and Processor a term/date has been agreed before which the Assignment needs to be executed and Client fails to: (a) pay an advance – if agreed – or (b) deliver in time the required Documentation in the desired format and in the right manner, Client and Processor start negotiating about a new term/date before which the Assignment needs to be executed.
Instalments within which the Work has to be done are only to be considered as a strict time limit when this has expressly and with this many words between Client and Processor been agreed upon in writing.

Article 11. LIABILITY AND EXEMPTIONS

Processor is not liable for damage of Client that arises due to that Client has not supplied or wrong or incomplete Documentation to Processor, or due to that they have not been supplied in time. Below includes the situation that Processor is not capable of delivering the financial statements within the legal term at the Chamber of Commerce as a result of any act omission (on the side) of the Client.
Processor is not liable for indirect damage, including forgone profit, missed savings, damage because of business stagnation and other consequential damage or indirect damage that is a result of not or not in time or not properly performing of Processor.
Processor’s liability is limited to the reimbursement of the direct damage that is a direct result of (a coherent 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 liability insurance of Processor for the concerning case will be paid, multiplied with the optional by Processor under the insurance contributed own risk. With direct damage is meant: the made costs for the establishment of and the scale of the damage; the made costs for the performance of Processor to comply with the Agreement and the reasonable made costs to prevent or reduce the damage.
If, for whatever reason, the liability insurance does not – as meant in article 3 – pay-out, the liability of Processor is limited to the amount of before the execution of the Assignment billed honorarium. If the Assignment concerns a term contract with duration of more than one (1) year, the before mentioned amount is set to once the amount of the honorarium that was billed in the twelve months prior to the arising of the damage and is charged to Client. In no case will the total reimbursement of damage on the grounds of this article be more than €000 per attributable shortcoming, unless parties – given the scale of the Assignment or the risks involved with the Assignment – see a reason to divert from this maximum during the conclusion of this Agreement.
A coherent series of attributable shortcomings counts as one (1) attributable shortcoming.
The in this article included shortcomings of liability do not count if or when there is talk of foul play or chosen recklessness of Processor or her executive management.
Client is held to take measures that limit damage. Processor has the right to undo the damage or to limit is by repairing or improving the executed work.
Client absolves Processor for claims made by third parties as a result of damage caused by Client not supplying the right Documentation or when it is not correct or incomplete.
Client absolves Processor for claims of third parties (Employees of Processor and by Processor contacted third parties including those) connected with the execution of the Assignment and who suffer from damage, and when the damage is the result of actions or operating of Client or hazardous situations in latter’s company or organization.
The conditions laid down in the articles 1 t/m 9 of this article cover both the contractual as the non-contractual liability of Processor towards Client.

Article 12. TERMINATION

Client and Processor have the right to at any time (mid-term) terminate the Agreement without regard to a notice period by means of a notice in writing to the other party. If the Agreement ends before the Assignment has been finished, the Client owes Processor the honorarium for the by Processor declared hours for Work that has been performed in favor of Client.
If Client proceeds to (mid-term) termination, Processor has the right to receive compensation from the on his side originated and feasible conversion loss and a compensation for additional cost that Processor has already made and compensation for the costs arising from optional cancellation of contacted third parties (such as – among others – the optional cost related to subcontracting).
If Processor proceeds to (mid-term) termination, Client has the right of cooperation of Processor with the transfer of Work to third parties, unless there is evidence of intent of conscious recklessness on the side of Client so that Processor feels the need to terminate. A condition on the right as described in this article is that Client has paid all open advances and declarations.

Article 13. RIGHT OF SUSPENSION

Processor is empowered to, after carefully looking at the balance of interests, to suspend the fulfilment of all his obligations under which the supplying of Documentation or other matters to Client or third parties, until the moment that all receivables due claims on Client have been paid.
The first article is not applicable on Documentation of Client that has yet undergone processing by Processor.

Article 14. EXPIRY DATE

As so far in these general terms and conditions else has not been determined, expired claim rights and other powers of Client which also apply to Processor related to the execution of the Work by Processor, at least one year after the moment on which Client became aware or could be reasonable familiar with the existence of these rights and powers. This term does not concern the possibility of reporting a complaint at the designated institution(s) for complaint processing and/or the Disputes Board.

Article 15. ELECTRONIC COMMUNICATION AND ELECTRONICALLY SUPPLYING FINANCIAL STATEMENTS

During the execution of the Assignment Client and Processor can communicate by means of electronic resources with one another and/or make use of electronic storage (such as could applications). Unless otherwise agreed upon in writing, parties may assume that sending of correctly addressed fax messages, emails (which include e-mails that are sent via the internet) and voicemail messages regardless whether these contain confidential information or pieces that refer to the Assignment, are accepted back and forth. The same applies for other by the other party used or accepted means of communication.

Client and Processor are towards each other not liable for damage that may arise at 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 as a result of not delivering or delaying at the delivery of electronic communication, omissions, deformity, intercepting or manipulation or electronic communication by third parties or programming software/equipment