General terms & conditions for services

CLAUSE 1: APPLICABILITY AND GENERAL PROVISIONS1.
The following general terms & conditions for services are applicable to all the offers of, all the commissions to and all the agreements with Kab auditors & tax consultants, hereinafter referred to as Kab, towards the professional execution of work and the provision of services.
2.
Within Kab different professional branches are active side by side on different levels, to wit:
- Chartered accountants;
- Federation tax consultants;
- Auditors - accounts consultants;
- Tax consultants;
- Legal advisers in the field of civil law.
3.
The activities referred to in the first paragraph of this clause include in any case, but are not limited to, organizing and/or keeping and/or checking accounts, drawing up and/or auditing annual reports and accounts, analysing and/or interpreting data derived from records, carrying out tax-related activities in so far as they ensue from or are related to the activities mentioned above and delivering recommendations on tax matters, legal matters in the field of civil law, the area of business operations and accounts in the broadest sense of the word, such on the levels of the professional branches respectively active within Kab.
4.
Client will only be entitled to rely upon stipulations deviating from these terms & conditions if these stipulations concerned were explicitly accepted by Kab in writing.
5.
In respect of the agreements concluded with Kab, effects are only attached to the general terms and conditions of client is so far as the latter are not contrary to the terms & conditions at issue. In case of doubt as to whether such a contrariety is in fact present, Kab’s general terms & conditions will prevail.
6.
Once the general terms & conditions at issue are applicable to the relation between client on the one hand and Kab on the other hand, the applicability of these general terms & conditions will be deemed to have been tacitly accepted by client for all subsequent commissions/agreements concluded with client/services provided, unless the applicability of these general terms & conditions should have been explicitly excluded in that case.CLAUSE 2: OFFERS, REALIZATION AND CONTENT OF COMMISSIONS1.
All Kab’s tenders and offers are free of any obligation.
2.
Commissions and modifications thereof may be provided by client both verbally and in writing. A commission or modification thereof assigned to Kab is not binding until expressly accepted by Kab, with respect to which it should be explicitly stated, replacing Section 7:404 of the Netherlands Civil Code, that each commission is exclusively accepted and carried out by the Kab partnership.
3.
If the content and the scope of the commission assigned to Kab and accepted by Kab should not have been laid down explicitly between parties, the content and the scope of the activities falling under the commission will be determined by that which is customarily rated as such by Kab on the one hand, and that which is widely rated as such within the professional group of the executive branches within Kab on the other.
4.
If it has not been explicitly agreed between client and Kab which professional branch active within Kab is to carry out the agreed activities/services to be carried out, Kab is entitled to have the activities concerned executed by the professional branch active within its organization which is best qualified to do so in view of the nature and the content of the activities to be performed.
5.
Even in case content and scope of the commission should have been explicitly agreed between parties, Kab reserves the right to carry out more activities than expressly belonging to the commission and to charge them to client, if these activities are in the interest of the client and/or necessary to a good performance of the commission.
Client will be informed of the execution of these additional activities as soon as possible.
6.
Kab is obliged to perform the commission received in a careful manner, as befits a good auditor - accounts consultant/chartered accountant/(federation) tax consultant as well as a legal adviser in the field of civil law.
7.
Kab determines the manner in which in its view the commission must be carried out. At client’s request Kab will inform client in advance of the way in which the performance will be given shape, unless this is contrary to the nature of the commission.
8.
Kab is entitled to outsource the commission or parts thereof to/have the commission or parts thereof carried out by third parties not employed by Kab, if Kab is of the opinion that this will further a good or efficient performance of the commission.CLAUSE 3: THE CLIENT’S DATA1.
Client will see to it that all the data required by Kab for an in its view adequate performance of the commission in the shape desired by Kab, come into possession of Kab.
 
2.
Kab is entitled to suspend the performance of the commission up to the moment when client has met its obligation referred to in the previous paragraph.
3.
Subject to obligations imposed by Law as to the publication of certain information, Kab is obliged to observe secrecy vis-à-vis third parties who are not involved with the performance of the commission regarding all the information placed at its disposal by client and the results obtained through the processing thereof, the above in so far as information of a confidential nature is concerned.
4.
Kab is not entitled to use the information placed at its disposal by client for any purpose other than it was obtained for, on the understanding that Kab is entitled to use the results in figures obtained after processing for statistical and/or comparative purposes, provided these results cannot be traced to the individual clients.
5.
Kab is obliged to retain and store in a careful manner all the data/materials placed at its disposal by client, such for as long as Kab requires these data and/or materials for a good performance of the commission it was given. As soon as the commission, or part of the commission, for which data/documents placed at its disposal were required by Kab has been completed and finished, client is obliged to collect at Kab’s the data/documents placed at the latter’s disposal.
6.
Client expressly bears the risk of damage or loss of the data/documents stored either at Kab’s or at third parties’, likewise as the dispatch of the data/documents is at the risk of client, irrespective of whether the dispatch occurs by or on behalf of client, Kab or third parties.
7.
Client indemnifies Kab against all claims from third parties related to any damages or losses of the data/information referred to in the previous paragraphs.CLAUSE 4: INDUSTRIAL AND INTELLECTUAL PROPERTY/COPYRIGHTS1.
All rights of an industrial or intellectual nature in respect of computer programs, system designs, working methods, recommendations, model contracts, etc. originating from or used by Kab are, will be and will remain expressly and exclusively the property of Kab, both during and after the performance of the commission, the above irrespective of the share of the client itself or third parties engaged in the development of the computer programs, system designs, working methods, recommendations, etc.
2.
The exercise of these rights, the publication or transfer of data included, is expressly and exclusively retained by Kab, both during and after the performance of the commission.CLAUSE 5: TIME OF PERFORMANCE OF THE COMMISSION1.
Unless a time when/within which the commission is to be performed should have been agreed explicitly between parties, as well as in case the time concerned/the period concerned should ensue expressly from the commission itself, Kab is entitled to determine for itself the time when the commission will be performed.
2.
The terms within which/times when Kab will have accomplished/completed the commissions assigned, as mentioned by Kab, are exclusively considered to be prognoses and are without any obligation, unless explicitly otherwise agreed in writing.
3.
If, as a result of Kab’s choice with regard to the moment of performance of the commission assigned, it should be necessary either to inform the authorities/semi-public agencies of this or to request a postponement from them in accordance with statutory provisions or regulations imposed by the government, providing the information/the request for postponement will be considered part of the commission and Kab will take care of this, except when explicitly otherwise agreed.CLAUSE 6: AMOUNT OF THE INVOICE, FEE AND EXPENSES1.
Unless a determined and fixed price for a specific commission was agreed expressly and in writing between parties, the fee client is  to be charged by Kab will be determined by the amount of time spent by Kab’s employees on the performance of the commission concerned, multiplied by the hourly rate of its respective performing employees as applied by Kab.
The basic hourly rates of its employees are unilaterally determined by Kab and Kab is entitled to pass on any changes thereof to the client without further notification, unless such notification should have been expressly stipulated by the client.
2.
All the travelling hours Kab’s employees should have made for the benefit of the client will be passed on completely.
3.
All the costs/disbursements incurred by Kab will be charged to the client. These costs include among other things the prices of materials to be processed, rents, invoices from called-in third parties, transport costs, etc. Increases in the prices of materials, rents, expenses for called-in third parties, transport, etc. will be passed on to the client.
4.
Kab undertakes to record accurately per time unit the amount of time spent on a commission for the benefit of the client, as well as the nature and the quantity of the disbursements. In case of a dispute between client and Kab with respect to the amount of an invoice, Kab’s time records as well as the disbursement records will count as conclusive evidence.
5.
Unless otherwise agreed or otherwise ensuing from the commission, Kab is entitled to invoice to client the activities carried out and the disbursements on a periodical basis.
At client’s request the invoice will be itemized.
6.
If considered desirable by Kab, client will be obliged to pay disbursements prior to activities to be carried out for the benefit of client, or otherwise client will be obliged to furnish, at Kab’s first demand, guarantees as to the settlement of its obligation to pay.CLAUSE 7: PAYMENT AND COMPLAINTS1.
If a different term of payment has not been explicitly agreed, the invoices sent to client by Kab must have been settled within 21 days after date of the invoice.
2.
If client has failed to settle the amount of the invoice either within the term of payment agreed or within the term referred to in paragraph 1 of this clause, client will be in default ipso jure, without a further notice of default being required for this purpose.
3.
If client is in default as to discharging its obligations to Kab, irrespective of whether this ensues from an advance bill or an invoice, and also remains in default as to furnishing security, Kab is entitled to suspend the performance of the commission or a further performance of the commission as well as other commissions without further notice, for as long as the invoices, advance payments or securities have not been settled/furnished.
4.
As from the moment when client will be in default as to the payment of the amount due, client will owe Kab an interest payment of 1% for each month the default continues.
5.
If client is in default with a payment due to Kab, all other claims Kab has on client will be payable on demand, without a further notice of default being required.
6.
Client relinquishes the right of set-off and must settle each invoice without discount or compensation.
7.
In case of a jointly assigned commission, clients will be jointly and severally liable for payment of the full amount of the invoice.
8.
If client disputes the amount of the invoice, Kab must be notified of client’s objections in writing within 30 days after the date of the invoice, under penalty of cancellation of the right of revendication. Under penalty of forfeiture of all claims Kab must be informed in writing of an objection with respect to work carried out within 30 days after the date of dispatch of the documents or the information client’s complaint refers to, or otherwise, if client proves that the deficiency could not have been discovered earlier, within 30 days after discovery of the deficiency.
9.
A complaint with respect to particular activities does not suspend the obligation of client to pay for them or other activities.
 
10.
In case of a legitimate complaint, Kab has a choice between adjusting the amount of its invoice, correcting any rejected activities or carrying them out once more, or cancelling the underlying agreement fully or partially, the latter by way of a simple notification to the client, without judicial intervention being required and at pro rata refund of the amount already paid by client in the matter. Kab will not be liable for any damage sustained by client as a consequence of the rejected activities or the cancellation of the agreement.
11.
In case client should be in default with any payment to Kab, Kab will be entitled to pass on its claim on client for collection, without any further notification being required for this purpose. All the costs incurred with respect to the collection of any claim on client will be payable by client, with the extrajudicial costs being passed on to client on the basis of the collection rates applied by the Netherlands Bar Association in this respect.CLAUSE 8: DURATION OF THE AGREEMENT AND TERMINATION1.
Commissions to organize, keep and/or maintain and/or check accounts as well as (other) commissions resulting in the necessity to carry out regularly repeating, whether or not slightly deviating activities, will be deemed to have been assigned for an indefinite period of time.
2.
All commissions other than those assigned for an indefinite period of time will either be terminated at the moment of their completion or at the time stipulated by parties.
3.
At all times each of the parties can cause the assigned commission to be terminated by giving notice. Judicial intervention is not required for this purpose.
4.
When a commission for an indefinite period of time is terminated, each of the parties will be required to observe a notice period of at least 3 months, unless the agreement has lasted less than 6 months, in which case observing a period of notice will not be required.
5.
Parties are not permitted to terminate any commissions other than those assigned for an indefinite period of time.
6.
As a departure from the above provisions of paragraphs 4 and 5, client can cause a commission to be terminated at a period of notice shorter than three months, or otherwise without a period of notice if a longer continuation of the commission cannot reasonably be demanded from client.
7.
If client fails to discharge, fails to discharge in a timely manner or fails to fulfil adequately any obligation as described in these general terms & conditions or otherwise ensuing from the agreement effected, client will be in default by operation of law without any notice of default being required for this purpose. In this case as well as in case client goes bankrupt, applies for a moratorium on payments, attachment is made on a substantial part of client’s property or if its business operations cease, Kab is entitled to terminate the non-cancellable commission as well as the commission for which a notice period applies, without observation of any period, and to cease all the ensuing activities. Client is liable for all damages to be sustained by Kab as a consequence of this termination of the commission.
8.
If a party cancels a commission for which a period of notice is to be observed, the cancellation must occur in writing and by registered letter if the terminating party is to rely on it.
9.
The party who cancels without being entitled to do so, or without observation of the prescribed period of notice or the notice period laid down by mutual agreement, is liable for the damage to be sustained by the other party.
10.
This clause neither affects Kab’s right to cancel a received and accepted commission nor the rights to suspend its activities as assigned to Kab otherwise in these provisions.CLAUSE 9: FORCE MAJEUR/LIMITATION OF LIABILITY1.
Unforeseen circumstances, of whatever nature, as well as:
- Mobilization, war and risk of war;
- Measures with respect to quota restrictions or other government measures;
- Strike;
- Blocking of transport;
- Fire;
- Failure to fulfil, failure to fulfil in a timely manner, failure to fulfil adequately,
for whatever reason, their obligations towards Kab by third parties on whom Kab is dependent for the performance of the commission; as a result of which Kab is unable to perform, unable to perform in a timely manner or unable to perform the commission without in its view damaging efforts and/or expenses, will count as force majeure for Kab. In case of force majeure Kab will be entitled to cancel or terminate the agreement with client fully or partially, such by means of a simple notification to client, without judicial intervention and without Kab being obliged to pay any compensation of damage sustained by client as a result of the cancellation/termination.
2.
Client is to guarantee the correctness of the information provided to Kab by client, and Kab accepts no liability whatsoever, neither towards the client nor towards third parties with respect to whom client avails itself of the activities/services provided by Kab, in so far as use was made for this purpose of information/materials originating from client and the damage ensues from the processing of incorrect or incomplete data.
3.
For all direct damages of client, connected in any way with, or caused by non-performance, non-timely performance or a non-adequate performance of the commission, Kab’s liability will be limited to the maximum amount paid in that specific case under the professional liability insurance concluded by Kab, increased by the amount of the excess which under the policy conditions is not borne by the insurer.
 
4.
In broad outline the insurance cover available, as referred to in paragraph 3 of this clause, is at least equal to that which is customary with offices comparable to Kab. At the written request of client Kab will inform client of the maximum cover of the professional liability insurance prevailing at the time.
5.
Kab is never liable for any indirect damages, also including discontinuation of the regular day-to-day affairs at client’s enterprise, connected in any way with, or caused by an error in the performance of the activities by Kab, with the exception of gross negligence or intention.
6.
Kab is entitled to revoke client’s damages at all times.
7.
Kab is not liable for damage or loss of documents during transport or during dispatch by post, irrespective of whether the transport or the dispatch occurs by or on behalf of client, Kab or third parties.
8.
Client indemnifies Kab against all claims from third parties which are directly or indirectly, circumstantially or immediately connected with the execution of the agreement.CLAUSE 10: RIGHT OF RETENTION, DISPUTES AND APPLICABLE LAW
1.
Kab is entitled to suspend the delivery of goods retained in relation with the performance of any commission until its claims in respect of any commission are satisfied.
2.
The Court of the place of business of Kab’s office concerned has jurisdiction in matters relating to offers, commissions and agreements which are governed by these general terms & conditions, unless the subject matter of the dispute falls within the jurisdiction of the subdistrict court.
3.
Dutch law applies to all the agreements and other legal relationships concluded between Kab and the client.
THESE GENERAL TERMS & CONDITIONS WERE FILED WITH THE CHAMBER OF COMMERCE AND INDUSTRY FOR CENTRAL GELDERLAND AT ARNHEM ON 26 SEPTEMBER 2001