General terms and conditions De Beer Audit B.V.
A General
The following terms are used in these general terms and conditions:
1 Principal: the natural person or legal entity which gave the Contractor instructions to
perform Work.
2 Contractor: De Beer Audit B.V. which concludes the Agreement and uses these general
terms and conditions. All agreements are established with the Contractor and are exclusively
fulfilled by the Contractor, to the exclusion of Sections 7:404 and 7:407 (2) of
the Dutch Civil Code. This also applies if it is the Principal’s explicit or implicit intention
that the Work is to be performed by a specific individual or specific individuals.
3 Work: all work for which the Contractor has received instructions or which the Contractor
performs on another account. The above applies in the broadest sense of the word
and in any event comprises the work as specified in the confirmation of the instructions.
4 Documents: all goods, including documents or data media, which the Principal has
made available to the Contractor, as well as all goods, including documents or data
media, which have been produced by the Contractor in the scope of fulfilling the instructions.
5 Agreement: every agreement between the Principal and the Contractor to perform
Work by the Contractor for the Principal in conformance with the stipulations specified
in the confirmation of the instructions.
B Applicability
1 These general terms and conditions apply to: all offers, quotations, instructions, legal
relationships and agreements, under whatever name, in which the Contractor undertakes/
will undertake to perform Work for the Principal, as well as to all Work resulting
from the same for the Contractor.
2 Departures from and additions to these general terms and conditions are only valid if
these have been agreed upon explicitly and in writing, for example in a (written)
agreement or confirmation of the instructions.
3 In the event that these general terms and conditions and the confirmation of the
instructions contain conflicting conditions, the conditions included in the confirmation
of the instructions will apply.
4 The Contractor explicitly rejects any applicability of the Principal’s general terms and
conditions.
5 The underlying Instructions/Agreement together with these general terms and conditions
represent the full agreements between the Principal and the Contractor regarding
the Work for which the Agreement is concluded. It replaces all prior agreements made
between the parties or proposals made in this respect.
C Commencement and duration of the agreement
1 Each Agreement is only established and commences at the time the confirmation of
the instructions signed by the Principal has been returned to and signed by the Contractor.
The confirmation is based on the information which the Principal supplied to
the Contractor at the time of the confirmation. The confirmation is deemed to correctly
and fully represent the Agreement.
2 The parties are free to prove the establishment of the Agreement by other means.
3 Each Agreement is entered into for an indefinite period of time, unless the nature,
contents or purpose of the instructions given show that the Agreement was entered
into for a fixed period of time.
4 Each Agreement is deemed to be tacitly renewed if the Contractor performs work for
the Principal, also in case the confirmation has not been signed and returned by the
Principal.
D Information of the Principal
1 The Principal is required to make all information and Documents which the Contractor
believes are necessary to correctly fulfil the Agreement available to the Contractor in
time, in the requested form and in the desired manner.
2 The Contractor is entitled to suspend the fulfilment of the Agreement until the Principal
has complied with the obligation mentioned in the previous paragraph.
3 The Principal is required to notify the Contractor at once regarding facts and circum
stances which may be relevant in connection with the fulfilment of the Agreement.
4 The Principal guarantees that the information and documents which are made available
to the Contractor by or on behalf of the Principal are correct, complete and reliable,
even if the information and documents originate from third parties.
5 The extra costs resulting from delays in the fulfilment of the Agreement and the extra
fee resulting from any failure to make the desired information available or to do so in
time or properly will be borne by the Principal.
6 If and to the extent that the Principal so requests, the documents made available will
be returned to the Principal, subject to the stipulations under N.
E Fulfilment of the Agreement
1 The Contractor determines the manner in which and by what person(s) the Agreement
will be fulfilled. If possible, the Contractor will take any directions from the Principal
regarding the fulfilment of the Agreement into account, provided these instructions are
sound and are given in a timely fashion.
2 The Contractor will perform the Work to the best of his ability and in a manner to be
expected of a careful professional. However, the Contractor cannot guarantee that any
envisaged result will be realised.
3 The Contractor is entitled to have a person or third party to be designated by the
Contractor perform specific Work without notification to and explicit consent from the
Principal if the Contractor believes that this is advisable.
4 The Contractor will fulfil the Agreement in accordance with the rules of conduct and
the professional rules that apply to him, which are part of the Agreement, and in accordance
with the statutory requirements. Upon request, a copy of the rules of conduct
and the professional rules applying to the Contractor will be sent to the Principal.
The Principal will respect the Contractor’s obligations and the obligations for parties
working at or for the Contractor, respectively, that arise from these rules of conduct
and professional rules and from the law.
5 In the event that Work is performed for the profession or business of the Principal
during the duration of the Agreement which is not covered by the Work to which the
Agreement relates, this Work will be deemed to have been performed based on separate
Agreements.
6 Any terms specified in the Agreement for performing the Work will be approximate
terms rather than deadlines. Thus, in the event that such a term is exceeded this does
not constitute a culpable failure on the part of the Contractor; consequently this is not
a ground for dissolving the Agreement. Terms set for completing the Work can only be
considered as deadlines if the Principal and the Contractor have explicitly agreed on
this in so many words or if this results from the nature of the work.
7 Unless stipulated otherwise in writing, the fulfilment of the Agreement is not specifically
aimed at detecting fraud. In the event that the work results in indications of fraud,
the Contractor will report this to the Principal. In so doing, the Contractor is required to
ob serve applicable statutory and other rules as well as the regulations and guidelines
issued by the various professional organisations.
F Confidentiality and exclusivity
1 The Contractor is required to maintain confidentiality with respect to third parties who
are not involved in the fulfilment of the Agreement. This confidentiality involves all
confidential information which the Principal made available to the Contractor and the
results obtained by processing this information. This confidentiality does not apply to
the extent that statutory or professional rules, including but not limited to the notification
duty resulting from the Dutch Act on Measures to Prevent Money Laundering and
the Financing of Terrorism and other national or international rules with a similar purpose,
impose a duty of disclosure on the Contractor, or in as far as the Principal has
released the Contractor from the confidentiality obligation. This stipulation does not
prevent confidential consultations between colleagues within the Contractor’s organisation
to the extent that the Contractor deems this necessary for careful fulfilment of
the Agreement or the due observance of statutory or professional rules.
2 The Contractor is entitled to use the figures obtained after processing for statistical or
comparative purposes, provided these figures cannot be traced back to individual Principals.
3 The Contractor is not entitled to use the information which the Principal makes available
to the Contractor for any purpose other than the purpose for which the information
was obtained, except as stipulated in paragraph 2, and in case the Contractor acts
on its own behalf, on behalf of an employee or a director of the Contractor in disciplinary,
civil, administrative or criminal proceedings in which these documents may be
relevant. In the event that the Contractor or an employee or a director of the Contractor
is accused of guilt or complicity in an offence or felony or a violation of professional
rules, the Contractor is entitled to disclose documents obtained from the Principal to
the Judge, Tax Authority or any disciplinary entity in case disclosure is necessary for the
defence to be conducted by the Contractor.
4 Except with the Contractor’s explicit prior written consent, the Principal is not permitted
to disclose the contents of recommendations, opinions or other (written) statements
from the Contractor or to make these contents available to third parties in any
other way, except to the extent that this results directly from the Agreement, is done
to obtain an expert opinion regarding the Contractor’s Work in question, the Principal
is under a statutory or professional duty of disclosure, or the Principal acts on his own
behalf in disciplinary, civil, administrative or criminal proceedings. Sustainable and
committed partners or if the Principal acts on its own behalf in disciplinary, civil, administrative
or criminal proceedings.
5 The Principal is required to enable the Contractor to comply with any relevant (inter)
national laws and regulations on independence. To this end, the Principal is required
to promptly, correctly and fully inform the Contractor of (any changes in) (eventual)
controlling relationships, legal structure, financial interests, participations and
other forms of cooperation entered into by its enterprise, organisation or group of
which the Principal is a part, all this in the broadest sense of the word.
G Intellectual property
1 The Contractor reserves all rights regarding products of the mind which he uses or used
in the scope of the fulfilment of the Agreement with the Principal, to the extent that
legal rights to those products may exist or are established.
2 The Principal is explicitly prohibited from providing those products, including but not
limited to computer programs, system designs, work methods, advice, (model) contracts
and other products of the mind, all this in the broadest sense of the word –
whether or not by using third parties- to third parties, or to reproduce, publish or exploit
those products.
3 The Principal is not permitted to provide (resources of) those products to third parties
other than for the purpose of obtaining an expert opinion regarding the Contractor’s
Work. In that case, the Principal will impose his obligations under this article upon the
third parties he calls in.
H Force majeure
1 In the event that the Contractor is unable to fulfil his obligations under the Agreement
or is unable to fulfil these obligations in time or properly as a result of a cause that
cannot be attributed to him, including but not limited to employee sickness, break-
downs in the computer network and other interruptions of the normal conduct of
business within his enterprise, these obligations will be suspended until the time the
Contractor can still fulfil these obligations in the manner agreed upon.
2 In the event that the situation referred to in the first paragraph occurs, the Principal is
entitled to cancel all or part of the Agreement in writing, without this giving rise to any
right to damages.
I Fee
1 The Contractor is entitled to suspend the performance of his Work before the start of
the Work and in the interim until the Principal pays an advance for the work to be performed,
to be reasonably fixed by the Contractor, or has furnished security for this.
Initially, an advance paid by the Principal will be set off by an invoice.
2 The Contractor’s fee does not depend on the outcome of the Work performed.
3 The Contractor’s fee may comprise a predetermined amount per Agreement and/or
may be calculated based on rates per time unit worked by the Contractor and is payable
as and when the Contractor has performed Work for the Principal.
4 In the event that an amount fixed per Agreement is agreed upon, the Contractor is
entitled to charge a rate per time unit worked on top of this, if and to the extent that
the scope of the Work exceeds the scope of the Work provided for in the Agreement, in
which case the Principal must also pay this additional amount.
5 In the event that wages and/or prices change after the establishment of the Agreement
but before the instructions have been fully carried out, the Contractor is entitled to
adjust the rate agreed on accordingly, unless the Principal and the Contractor have
made other agreements in this regard.
6 The Contractor’s fee, if necessary plus disbursements and invoices from third parties
called in, including the value added tax due, if any, will be charged to the Principal on a
monthly, quarterly or annual basis or after completion of the Work.
J Payment
1 The Principal must pay the invoice amount within the terms agreed upon, but in no
event later than 14 days after the invoice date, in Euros, at the office of the Contractor
or by means of payments into a bank account to be designated by the Contractor and
in as far as the payment regards work, the Principal has no right to a discount or setoff.
2 In the event that the Principal fails to pay within the term mentioned in paragraph 1 or
within the term further agreed upon, the Principal will be legally in default and the
Contractor is entitled to charge the statutory (commercial) interest in accordance with
art. 6:119a BW from the due date until the day of payment in full, without any further
summons or notice of default being required, all this without prejudice to the Contractor’s
further rights.
3 All costs arising as a result of collection of the claim in or out of court will be borne by
the Principal, including to the extent that these costs exceed the court order to pay the
costs of the proceedings. The extra judicial costs are fixed at a minimum of 15% of the
amount to be claimed, with a minimum of EUR 250.00.
4 In the event that the Contractor is of the opinion that the Principal’s financial position
or payment record gives rise to this, the Contractor is entitled to demand that the Principal
furnish (additional) security in a form to be specified by the Contractor. In the
event that the Principal fails to furnish the requested security, the Contractor is entitled
-without prejudice to any other rights he may have- to immediately suspend the further
fulfilment of the Agreement and everything that the Principal owes the Contractor
on any account what so ever will be due and payable at once.
5 In the event of instructions issued jointly, the Principals are jointly and severally liable
for the payment of the invoice amount to the extent that the Work has been performed
for the collective Principals.
K Complaints
1 Complaints regarding the work performed and/or the invoice amount must be notified
to the Contractor in writing within 30 days after the documents or information about
which the Principal complains have been sent or within 30 days after the defect is discovered,
in the event that the Principal demonstrates that he reasonably was unable to
discover the defect earlier.
2 Complaints as referred to in the first paragraph do not suspend the Principal’s payment
obligation, except to the extent that the Contractor indicates that he believes the complaint
is valid.
3 In the event of a valid complaint, the Contractor can either adjust the fee charged,
rectify or redo the rejected Work at no cost or not (or no longer) perform all or part of
the instructions in exchange for restitution in proportion to the fee which the Principal
already paid.
4 In the event that the complaint is filed too late, all rights of the Principal in connection
with the complaint become null and void.
L Liability and indemnification
1 The Contractor is only liable to the Principal for damage, which directly results from a
(related series of) culpable failure(s) in fulfilling the Agreement. This liability is limited
to the amount paid for the event in question according to the Contractor’s liability
insurer, plus the excess to be paid by the Contractor under the insurance policy, if any.
If the liability insurer does not pay for any reason whatsoever, the Contractor’s liability
is limited to the amount of the fee charged for fulfilling the Agreement. In the event
that the Agreement is a continuing performance contract with a term of more than one
year, the amount mentioned above will be set at three times the amount of the fee
charged to the Principal in the twelve months preceding the occurrence of the damage.
In no event will the total compensation of the damage by virtue of this article amount
to more than EUR 300,000 per event, in which a series of related events is deemed to
be a single event, unless -in view of the scope of the instructions or the risks related to
the instructions- the parties at the time the Agreement is entered into feel that there is
reason to deviate from this maximum.
2 The Contractor is not liable for:
– damage occurring at the Principal or third parties which is the result of the provision
of incorrect or incomplete information, or information not provided within the time
limit set by the Principal to the Contractor or which is the result of some other act or
omission on the part of the Principal;
– damage occurring at the Principal or third parties which is the result of acts or omissions
on the part of agents called in by the Contractor (not including employees of
the Contractor), also if these work for an organisation which is affiliated with the
Contractor;
– consequential damage or loss of profits occurring at the Principal, including but not
limited to interruptions in the orderly conduct of events in the Principal’s business.
3 The Contractor will at all times be entitled to remedy or limit the Principal’s damage by
rectifying or correcting the defective product if and to the extent possible.
4 The Contractor is not liable for any damage caused to the Principal due to the use of
electronic means of communication, including but not limited to damage caused by
failures or delays in the delivery of electronic communication, interception or manipulation
of electronic communication by third parties or caused by software or equipment
used for the transmission, receipt or processing of electronic communication, the
transmission of viruses and the failure in the (proper) performance of the telecommunication
network or other means necessary for electronic communication, except to
the extent that the damage is the result of wilful misconduct or gross negligence on the
part of the Contractor. The data extracts from the computer systems of the Contractor
shall be conclusive proof of (the contents of) the electronic communication sent by the
Contractor until the Principal has furnished proof to the contrary.
5 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
and directly or indirectly related to the fulfilment of the Agreement. The Principal
specifically indemnifies the Contractor against claims from third parties on account of
damaged caused because the Principal provided incorrect or incomplete information to
the Contractor, unless the Principal demonstrates that the damage is not related to any
culpable act or omission on his part, or has been caused by wilful misconduct or gross
negligence on the part of the Contractor. The above stipulations do not apply to instructions
to audit the financial statements as referred to in Section 393 of Book 2 of
the Dutch Civil Code.
6 The Principal indemnifies the Contractor against all possible claims from third parties in
the event that the Contractor is forced by law and/or his professional rules to return
the instructions and/or is forced to render his assistance to government agencies which
are entitled to receive information -both when asked and at their own initiative- which
the Contractor received from the Principal or third parties in the course of fulfilling the
instructions.
M Expiry period
Unless otherwise stipulated in these general terms and conditions, rights of action and
other powers of the Principal on any account whatsoever towards the Contractor in
connection with the performance of Work by the Contractor will in any case become null
and void one year after the time at which the Principal learned or reasonably could have
learned of the existence of these rights and powers. This term does not regard the
possibility to file a complaint with the appropriate body (bodies) for complaint handling
and/or the Raad voor Geschillen (Dispute Review Board).
N Cancellation
1 The Principal and the Contractor can terminate the Agreement at any time with immediate
effect by giving notice. In the event that the Agreement ends before the instructions
are completed, the stipulations of L.2 apply.
2 The other party must be informed of the cancellation in writing.
3 If and to the extent that the Contractor terminates the Agreement by giving notice, he
must inform the Principal of his reasons for the cancellation and do everything the
circumstances demand in the interest of the Principal.
O Right of suspension / Right of retention
The Contractor is entitled to suspend fulfilment of all his obligations, including the surrender
of documents or other matters to the Principal or third parties, until all payable
claims against the Principal are paid in full. The Contractor may only refuse to surrender
Documents after making a careful consideration of interests.
P Additional terms
During the performance of the services and within one year after the termination of
services neither party is allowed to directly or indirectly engage personnel of the other
party, to negotiate with these personnel about employment, or to induce personnel to
terminate their employment.
Q Applicable law and jurisdiction clause
1 All Agreements between the Principal and the Contractor to which these general terms
and conditions apply are governed by Dutch law.
2 All disputes in connection with Agreements between the Principal and the Contractor
to which these general terms and conditions apply will be settled by the competent
court in the district where the Contractor is domiciled.
3 Contrary to the stipulation in paragraph 2, the Principal and the Contractor may opt for
another dispute resolution manner.
4 The Contractor has a complaints procedure in place. In addition to that it is possible to
anonymously report any complaints by using the whistleblowing procedure. Information
about these procedures may be obtained from the Directors or the Compliance
Officer.
5 The provisions of these General Terms and Conditions, which are expressly or tacitly
intended to also apply after the termination of the Agreement, shall continue to remain
in force and shall continue to be binding on both parties.
THE GENERAL CONDITIONS HAVE BEEN FILED IN DUTCH AT THE CHAMBER OF COMMERCE IN TILBURG UNDER NO. 18085242