Article 1. DEFINITIONS

The capitalized definitions listed below have the following meanings in the context of these general terms and conditions:

• Professional rules: the professional rules and rules of conduct applicable to all accountants by virtue of registration in the accountants' register of the NBA (Nederlandse Beroepsorganisatie van Accountants);
• Documents: any information or data provided by the Client to the Contractor; any data produced or collected by the Contractor in the performance of the Order/Agreement; and any other information relevant to the performance or completion of the Order. The above information may be stored on tangible or intangible media, whether or not placed with third parties;
• Employee: a natural person employed by or associated with the Contractor, whether or not under an employment contract;
• Contract/Agreement: the agreement for the provision of services under which the Contractor undertakes to the Client to perform the specified Work;
• The Client: the natural or legal person who has given the Contractor the Order to perform Work;
• The Contractor: the company that has accepted the Assignment. All Assignments are accepted and performed exclusively by the Company, not by or on behalf of an individual Employee, even if the Client has expressly or implicitly issued the Assignment for performance by a specific Employee or specific Employees. The applicability of articles 404, 407 paragraph 2 and 409, Book 7 of the Civil Code is expressly excluded;
• Work: all work to be performed by the Contractor for the Client pursuant to the Order, which has been accepted by the Contractor, as well as all work resulting therefrom for and to be performed by the Contractor.

These general terms and conditions apply to: all offers, tenders, Assignments, legal relationships and Agreements, under whatever name, for which the Contractor undertakes to perform Work for the Client, as well as all Work resulting therefrom for the Contractor.

Deviations from, or additions to, these general terms and conditions are only valid if expressly agreed in writing, for example in an Agreement (in writing) or in a (further) confirmation of the Assignment.

If any provision in these General Terms and Conditions and the Order Confirmation conflict, the provision set forth in the Order Confirmation regarding the conflict shall prevail.

These general terms and conditions also apply to additional or follow-up Assignments.

The applicability of the Client's general terms and conditions is hereby expressly rejected by the Contractor.

Natural persons and legal entities involved in the provision of services to the Client by or on behalf of the Contractor, directly or indirectly or in any way, whether or not on the basis of an employment contract, may rely on these general terms and conditions.

 

Article 3. ASSIGNMENT DATA.

The Client is obligated to make available to the Contractor all Documents that the Contractor, in his/her judgment, requires for the proper performance of the Order in the required form, manner and timeliness. The Contractor shall determine what is to be understood by the required form, manner and timeliness.

The Client guarantees the accuracy, completeness and reliability of the Documents provided by him/her, even if they originate from third parties, insofar as this does not otherwise result from the nature of the Assignment.

The Client shall indemnify the Contractor for any damage or loss resulting from incorrect or incomplete Documents.

Any additional costs incurred by the Contractor and additional hours worked by the Contractor, as well as any further loss or damage incurred by the Contractor as a result of the Client's failure to provide the necessary Documents, in a timely manner or correctly, shall be at the Client's expense and risk.

In the case of electronic transmission by the Contractor of information, including but not limited to tax returns, financial statements, reports from (and on the order of) the Client to third parties, the Client shall be deemed to be the party signing and transmitting such information.

The Contractor has the right to suspend the execution of the Order until the Client has fulfilled the obligations mentioned in the first subclause.

The Contractor shall, upon the Client's first written request, return to the Client the original Documents provided by the Client.

 

Article 4. EXECUTION OF THE CONTRACT

The Contractor will perform the Order to the best of his ability and in compliance with applicable laws and (Professional) regulations.

The Contractor will determine how the Order will be performed and by which Employee(s).

The Contractor has the right to have Work performed by a third party designated by the Contractor.

 

Article 5. (APPEARANCE) RULES.

The Client will cooperate fully with the Contractor's obligations under applicable (Professional) regulations.

The Contractor will take appropriate measures to protect 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 accordance with the applicable (inter)national legislation and (Professional) rules on the protection of personal data.

The Client is aware that in some cases the Contractor may be required by (inter)national laws or (Professional) regulations to disclose the Client's confidential information. To the extent necessary, the Client hereby consents and cooperates with such disclosure, including (but not limited to) those instances where the Contractor:

• performed or intended unusual transactions, described in the legislation and (Professional) rules, which become known to the Contractor during the performance of the Work, must report to the authorities appointed by the government for this purpose;
• must report fraud in specific situations;
• is required to conduct an investigation into (the identity of) the Client, or the Client's client.

The Contractor excludes any liability for damage or loss suffered by the Client due to the Contractor's compliance with the laws and (Professional) regulations to which the Contractor is subject.

The parties will impose their obligations under this article on third parties to be engaged by them.

 

Article 6. INTELLECTUAL PROPERTY

The execution of the Order by the Contractor does not imply a transfer of the intellectual property rights held by the Contractor. All intellectual property rights arising during or resulting from the performance of the Order belong to the Contractor.

The Client is expressly prohibited from reproducing, publishing or using the products in which the Contractor's intellectual property rights are vested, or the products to which the Contractor's intellectual property rights are attached, unless written permission is obtained from the Contractor.

The Client is not permitted to make the products mentioned in the second subclause available to third parties.

Article 7. FORCE MAJEURE

If the parties are unable to fulfill their obligations under the Agreement due to force majeure within the meaning of Article 75 Book 6 of the Civil Code, cannot fulfill them in time, or cannot fulfill them in the proper manner, these obligations shall be suspended until the parties are able to fulfill them in the agreed manner.

If the situation, as mentioned in the first subclause, occurs, the parties have the right to terminate all or part of the Agreement in writing and with immediate effect, without the right to any compensation.

If at the onset of the force majeure situation the Contractor has already partially fulfilled the agreed obligations, the Contractor is entitled to invoice interim the Work performed separately, and the Client must pay this invoice as if it were a separate transaction.

Article 8. HONORARY AND COSTS.

The Work performed by the Contractor shall be charged to the Client on the basis of time spent and costs incurred, unless the parties have expressly agreed otherwise, such as, for example, payment of a fixed price. Payment of the fee does not depend on the result of the Work, unless otherwise agreed in writing. Travel time and accommodation expenses in connection with the Work shall be charged separately.

In addition to the fee, expenses incurred by the Contractor and invoices from third parties engaged by the Contractor will be charged to the Client.

The Contractor has the right to demand an advance payment from the Client. Failure to make timely advance payment may be cause for the Contractor to (temporarily) suspend the Work.

If after the conclusion of the Agreement, but before the execution of the entire Assignment, rates or prices are changed, the Contractor is entitled to adjust the agreed rate accordingly, unless expressly agreed otherwise.

If required by law, sales tax ("VAT") will be charged separately on all amounts due from the Client to the Contractor.

Article 9. PAYMENT

Payment by the Client of amounts due to the Contractor shall be made, without the Client having any right to discount, reduction, suspension or set-off, within 14 days of the invoice date, unless otherwise agreed. The day of payment is the day on which the amount due is credited to the Contractor's account.

If the Client fails to pay within the period specified in the first sub-clause, the Client shall be in default by operation of law and the Contractor shall be entitled to charge statutory (commercial) interest from that time.

If the Client fails to pay within the said period, the Client shall be obliged to reimburse all judicial and extrajudicial (collection) costs actually incurred by the Contractor. The reimbursement of costs incurred is not limited to the amount of costs determined by the court.

In the case of a jointly issued Order, the Principals are jointly and severally liable for payment of the invoice amount, including interest and costs.

If the Client's financial position or payment record gives cause to do so, in the Contractor's opinion, or if the Client fails to make an advance payment, or to pay an invoice within the specified period, the Contractor is entitled to demand that the Client provide (additional) security in a form determined by the Contractor. If the Client fails to provide the required security, the Contractor shall have the right, without prejudice to its other rights, to immediately suspend further performance of the Contract, and everything the Client owes the Contractor in any way shall be immediately due and payable.

Article 10. PERIODS / TERMS

If a period/date has been agreed between the Client and the Contractor within which the Order must be performed and the Client fails to: (a) make an advance payment - if agreed - or (b) make the necessary Documents available on time, in full, in the required form and in the required manner, the Client and the Contractor shall consult about a new period/date within which the Order must be executed.

Deadlines within which the Work must be completed shall only be regarded as a deadline if this has been expressly and unambiguously agreed (in writing) between the Client and the Contractor.

Article 11. LIABILITY AND INDEMNIFICATION

The Contractor shall not be liable for any loss or damage on the part of the Client arising from the fact that the Client has not provided, or has not provided, any incorrect or incomplete Documents to the Contractor in a timely manner. This also applies to the situation in which the Contractor is unable to submit the annual report and financial statements to the Chamber of Commerce within the statutory deadline due to acts or omissions (on the part of) the Principal.

The Contractor shall not be liable for indirect damages, such as loss of profits, lost savings, loss due to business interruption and other consequential damages, or indirect damages resulting from the Contractor's failure to perform, to perform on time or to perform properly.

The Contractor's liability is limited to compensation for direct damage resulting directly from (a connected series of) attributable shortcomings in the execution of the Order. This liability is limited to the amount paid out according to the Contractor's liability insurer for the case in question, plus any excess for the Contractor according to the terms of the insurance policy.

Direct damages include: the reasonable costs incurred to determine the cause and extent of the damage; the reasonable costs incurred to ensure that the Contractor's performance complies with the Agreement, and the reasonable costs incurred to prevent and limit the damage.

If for any reason the liability insurer does not pay out, the Contractor's liability is limited to the fee charged for the execution of the Assignment. If the Engagement relates to a continuing Contract with a term of more than one year, the above amount shall be set at the amount of the fee charged to the Client in the twelve months preceding the occurrence of the damage.

A connected series of culpable deficiencies counts as a single culpable deficiency.

The limitations of liability in this article do not apply if there is intentional or deliberate recklessness on the part of the Contractor or his managerial staff.

The Client is obliged to take measures to limit damage. The Contractor has the right to repair or limit damage by repairing or improving the Work performed.

The Client shall indemnify the Contractor against all third party claims as a result of damage caused by the Client's failure to provide the Contractor with any or incorrect, incomplete Documents.

The Client shall indemnify the Contractor against all claims of third parties (including Employees of the Contractor and third parties engaged by the Contractor) who suffer damage in connection with the performance of the Order, which is the result of acts or omissions of the Client or is the result of unsafe situations in the Client's company or organization.

The provisions of subclauses 1 through 9 of this Article apply to both the Contractor's contractual and non-contractual liability to the Client.

Article 12. TERMINATION

The Client and the Contractor may terminate the Agreement at any time with immediate effect and without notice, by written notice to the other party. If the Agreement ends before the Assignment is completed, the Client shall owe the fee based on the hours recorded by the Contractor for the Work performed for the Client.

If the Client (temporarily) terminates the Agreement, the Contractor is entitled to: compensation for loss of capacity due to lower utilization rates that can be made plausible by the Contractor; compensation for additional costs already incurred by the Contractor; and costs arising from the cancellation of third parties engaged (such as - among other things - costs related to subcontracting).

If the Contractor terminates the Agreement (temporarily), the Client shall have the right to cooperate with the Contractor during the transfer of the Work to third parties, unless there is intent or deliberate recklessness on the part of the Client that forces the Contractor to terminate the Agreement. The right to cooperate is subject to the condition that the Client has paid all underlying outstanding advance payments or invoices.

Article 13. RIGHT OF SUSPENSION

The Contractor shall have the right, after careful consideration of interests, to suspend performance of its obligations, including handing over Documents or other items to the Client or third parties, until all due claims against the Client have been paid in full.

The first subclause does not apply to Client Documents that have not (yet) been processed by the Contractor.

Article 14. STATUTE OF LIMITATIONS

Insofar as these General Terms and Conditions do not provide otherwise, rights of action and other claims of the Client on any grounds whatsoever against the Contractor with respect to the performance of Work by the Contractor will lapse in any event after one year from the time the Client was aware or could reasonably have been aware of the existence of these rights and claims. This period does not relate to the possibility of filing a complaint with the Quality Controller of PLCO Accountants & Advisors B.V.

Article 15. ELECTRONIC COMMUNICATION AND DIGITAL ARCHIVING OF THE ANNUAL REPORT AND FINANCIAL STATEMENTS

During the performance of the Order, the Client and the Contractor may communicate with each other by electronic means and/or use 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, regardless of whether they contain confidential information or Documents relating to the Order, will be mutually accepted. The same applies to other means of communication used or accepted by the other party.

The Client and the Contractor shall not be liable to each other for damages that may arise to either or both parties from the use of electronic communications, networks, applications, electronic storage, or other systems, including, but not limited to, damages resulting from non-delivery or delay in delivery of electronic communications, omissions, distortion interception or manipulation of electronic communications by third parties or by software/equipment used to send, receive or process electronic communications, the transmission of viruses and the malfunctioning of the telecommunications network or other means required for electronic communications, except to the extent that the damage results from intent or gross negligence. The above also applies to the Contractor's use of these means in his contact with third parties.

In addition to the preceding subclause, the Contractor accepts no liability for damages arising out of or in connection with the electronic transmission of (electronic) annual reports and their digital submission to the Chamber of Commerce.

The Principal and the Contractor shall do or refrain from doing everything that can reasonably be expected of them to avoid the above risks.

The data output from the sender's computer system is conclusive evidence of (the content of) the electronic communication sent by the sender, unless the contrary is proven by the recipient.

The provisions of Article 11 shall apply accordingly.

Article 16. MISCELLANEOUS

If the Contractor performs Work at the Client's location, the Client guarantees a suitable workplace that complies with the legal working conditions and other applicable regulations regarding working conditions. The Client must ensure that in that case the Contractor is provided with office space and other facilities which, in the Contractor's judgment, are necessary or useful for the performance of the Agreement, and which meet all (legal) requirements for this purpose. Regarding (computer) facilities that are made available, the Client is obliged to ensure continuity, including by means of adequate backup, security and virus scanner procedures. The Contractor will implement virus control procedures when using the Client's facilities.

The Client shall not employ or solicit any Employees involved in the performance of the Work to become temporarily or permanently employed by the Client, or to perform work for the Client, directly or indirectly, during the term of the Agreement or any renewal thereof and for 12 months thereafter.

These general terms and conditions are drawn up in both Dutch and English. In case of any difference or conflict between the English and Dutch texts, the Dutch text shall be binding.

The provisions in the Engagement that are expressly or by their nature to survive the end or termination of the Engagement shall survive the end or termination, including Articles 6, 8, 9, 11, 16 subclause 2 and Article 17.

Article 17. APPLICABLE LAW AND CHOICE OF FORUM

The Agreement is governed by Dutch law.

All disputes shall be settled by thecompetent court in the district where the Contractor is located.

The provisions of subclauses 1 and 2 of this Article shall not affect the Principal's option to submit a dispute to the Quality Controller of PLCO Accountants & Advisors B.V.

Article 18. RECOVERY CLOUSULE

If any provision of these General Terms and Conditions or of the underlying Assignment/Agreement is wholly or partially void and/or invalid and/or unenforceable as a result of any statutory regulation, court order or otherwise, this shall not otherwise affect the validity of all other provisions of these General Terms and Conditions or the underlying Assignment/Agreement.

If any provision in the Order or any part thereof is unenforceable on legal grounds, the remainder of the Order shall remain in full force and effect, provided that provisions in the unenforceable portion shall be deemed to have been modified so as to be enforceable, preserving as much as possible the intent of the parties with respect to the original provision or portion.