General Terms and Conditions of Peak Accountancy & Belastingadvies B.V.
Article 1
General
In these General Terms and Conditions:
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2.
The Client refers to the party issuing the assignment, and
Peak refers to the company with limited liability Peak Accountancy & Belastingadvies B.V.
statutory established in Rotterdam, the Netherlands, registered at the Dutch Chamber of
Commerce, number 51196948. All assignments will be accepted and carried out
exclusively by Peak as such which for this purpose waives the application of the articles
7:404 and 7:407 paragraph 2, of the Netherlands Civil Code.
Article 2
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These General Terms and Conditions apply to all legal relationships between the Client
and Peak. In so far as parties have not explicitly agreed otherwise in writing, all provisions
of these General Terms and Conditions will fully and unconditionally prevail between
Client and Peak.
Any reference made by the Client to his own General Terms and Conditions whatever they
are called and in whichever stage of the establishment of the agreement with Peak they
are made, shall be explicitly rejected. The Client is expected to accept the applicability of
these General Terms and Conditions also with regard to later offers made to him by Peak,
assignments issued by him to Peak and agreements concluded on his behalf with Peak.
Peak is entitled to amend these General Terms and Conditions. An amendment to these
General Terms and Conditions shall come into force at the indicated date of
commencement and in the absence of such a date, at the moment when the Client has
been informed of the amendment or the amendment has become known to him. The
amended General Terms and Conditions shall be sent to the Client in a timely manner.
The assignment shall be performed by Peak with due consideration of the applicable
legislation and regulations including the rules of conduct and professional practice
applying to Peak and to the persons performing the assignment. Peak shall never be
bound to perform any acts or omissions that are contrary to or incompatible with the
legislation and regulations referred to above. The Client declares at all times to fully
respect the obligations on Peak.
Article 3
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Applicability
Concluding an agreement
An agreement is concluded at the moment when Peak has received a confirmation of the
assignment, signed by Peak and the Client. The confirmation is based on the information
provided by the Client to Peak at that time. The confirmation is deemed to fully and
accurately reflect the agreement.
The Client is obliged to inform Peak in a timely manner and in writing, of any changes
concerning the execution of an assignment issued to Peak by him. The assignment the
amendment applies to is considered to be a new assignment that shall lead to an
agreement only if and in so far as Peak accepts the assignment in writing. If Peak does
not accept the new assignment, the original assignment shall be cancelled and reciprocal
obligations to undo shall come into force for any part of the original assignment already
carried out. If the (part) of the work already carried out cannot in all reasonableness be
made undone, the obligation arises to compensate the value of this execution, which is
equivalent to the invoice value thereof. Peak is authorised to charge the Client for the
additional costs connected to the change in the execution of an assignment.
Both parties are free to prove that the agreement was concluded in a different manner.
4.
The agreement is entered into for an indefinite period of time, unless it can be inferred
from the terms of reference, nature, or scope of the issued assignment that the
agreement was entered into for a specific period of time.
Article 4
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The Client is obliged to provide in a timely manner, in the desired format and in the
desired way, all data and documents Peak deems necessary for correctly carrying out
the issued assignment.
In the case of financial audit assignments, the Client shall inform Peak of all the other
relevant information required to complete or carry out the assignment.
The Client guarantees the accuracy, completeness, and reliability of the data and
documents provided to Peak, even when they originate from third parties, in so far as
the nature of the assignment does not provide otherwise.
If and in so far as the Client so requests, the provided documents shall be returned to
the Client.
Where this is necessary for the substantiation of the soundness of the work performed,
original documents that have a formal status, such as notarial deeds, decrees and
government permits provided to Peak by the Client, shall be copied and included in the
work files. The original documents shall be returned to the Client.
Extra costs and remuneration, arising from a delay in the execution of the assignment,
because the data and documents required have not been provided or have been
provided late or inadequately, shall be borne by the Client.
Article 5
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Executing the assignment
Peak determines the person that shall carry out the issued assignment, and the
manner in which the assignment is carried out.
Peak may carry out more work than included in the issued assignment and charge this
to the Client, provided the Client has given prior permission.
If the Client wishes to involve third parties in the execution of the assignment, he shall
only do so after agreement has been reached with Peak. That which is stipulated in the
previous sentence applies to Peak by analogy.
If execution of the assignment by Peak is (partially) impossible due to non- or inadequate
compliance by the Client to the obligations in article 4.1 and 4.2, executing the
assignment shall be (partially) suspended until the Client has (properly) fulfilled his
obligations according to article 4.1 and 4.2, or the agreement with the Client shall be
(partially) dissolved without judicial intervention being required. The Client is obliged to
pay for the work already performed.
That which is stipulated in article 5.4 applies by analogy if the execution of the assignment
by Peak is (partially) impossible because of force majeure, on the understanding that
executing the assignment shall be (partially) suspended until the situation of force majeure
no longer exists. The foregoing applies irrespective of whether the conditions leading to
force majeure occur before or after the moment when the assignment should have been
completed. In the case of force majeure, Peak is not obliged to compensate damages.
Compliance by Peak, notwithstanding a situation of force majeure, does not affect
Peak’s right to use his power to suspend or to dissolve in other cases.
Article 6
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Information provision by the Client
Delivery Period
The delivery period commences as soon as Peak has received all data and documents
required to carry out the activities, as mentioned under article 4.1 and 4.2.
If the Client is to pay an advance, the delivery period commences no sooner than the
payment has been received in full.
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Periods within which the activities should be completed may only be considered a final
date if this has been agreed explicitly in writing. The Client is entitled to compensation
only if a delivery period that has been explicitly agreed and explicitly been qualified as
final is exceeded by Peak. This compensation can never be higher than the payment that
was agreed for the delayed performance.
Peak shall make all efforts that can in reasonableness be expected in order to complete
the assignment within the stated or agreed period of time. Except in the case of intent or
gross negligence, a possible exceeding of the agreed date does not give
the Client the right to claim compensation, to refuse the service rendered by Peak, to noncompliance with or suspension of any obligation resulting from the agreement entered into
with Peak, or to (partially) dissolve the agreement.
Each delivery period shall be extended by the period of time by which the execution of
the assignment is delayed because of force majeure, irrespective of whether the
condition leading to force majeure begins before or after the moment when the
commitment should have been fulfilled. Extension of the delivery period shall also take
place if, and for as long as, the Client provides any payment or performs any
other obligation later than agreed, or later than in fairness might be expected from
Peak, irrespective of whether the Client is in default.
Article 7
1.
In these General Terms and Conditions force majeure is understood to mean: each
circumstance or event beyond Peak’s control, which prevents wholly or partially,
whether or not temporarily, compliance with the obligations towards the Client or
because of which compliance with the obligations cannot in reasonableness be
expected from Peak, irrespective of whether the circumstance or event was to be
expected when the agreement was concluded, such as among other things
government measures, fire, accidents, labour unrest and non-compliance, for whatever
reason, by third parties engaged by Peak.
Article 8
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Force Majeure
Confidentiality
Unless a legal or professional duty entails disclosure, Peak is obliged to maintain
confidentiality towards third parties.
Peak is not entitled to use the information provided by the Client for any other
purpose than for which it was obtained, except when Peak represents himself in
disciplinary, civil or criminal proceedings where these documents could be of
importance.
Unless Peak has granted prior written permission, the Client shall not disclose the
contents of reports, advice or any other opinions of Peak, in writing or otherwise, that
were not drawn up or produced with the intent to supply third parties with the
information contained therein. The Client shall also ensure that third parties shall not
learn of the contents referred to in the previous sentence.
On the basis of the provisions in or under the terms of the law, in particular, though not
exclusively, the Act to prevent Money Laundering and Financing Terrorism (Wet ter
voorkoming Witwassen en Financieren van terrorisme, Wwft), PEAK is obliged in certain
cases to report an unusual transaction carried out or intended during the performance of
the assignment issued to it to the Financial Intelligence Unit –
Nederland in Zoetermeer (FIU Nederland) within 14 days. Peak is obliged to observe
secrecy concerning this reporting.
Peak shall impose the obligations resulting from this article on third parties engaged by
him.
Article 9
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Intellectual property
Peak reserves all rights in relation to intellectual products that he uses or has used in
the framework of the execution of the Client’s assignment, in so far as these are
provided for by law.
The Client is explicitly prohibited from reproducing, disclosing, or exploiting such
products, including Peak’s computer programmes, system designs, working methods,
advice, (model) contracts, and other intellectual products, all in the widest sense of the
word, with or without engaging third parties.
The Client is not permitted to provide third parties with aids of those products, other
than to obtain an expert opinion on Peak’s activities.
Article 10 Remuneration
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Peak’s remuneration does not depend on the outcome of the issued assignment.
If after concluding the agreement – but before the assignment has fully been carried out
– wages and/or prices are subjected to change, Peak is entitled to adjust the agreed rate
accordingly, unless the Client and Peak reached other agreements in this respect. If the
adjustment implies an increase of more than 10%, or if an increase
takes place within three months after the conclusion of the agreement between Peak
and the Client, the Client is entitled to dissolve the agreement. The right to dissolve
shall expire on the 15th day of the invoice date of the first invoice which is sent to the
Client after the increase of the agreed fee.
Peak’s remuneration – where appropriate including advances and invoices from third
parties engaged – shall be charged to the Client monthly, quarterly, annually, or on
completion of the activities, unless the Client and Peak reached other agreements
on this issue. Value added tax due on the sums payable by the Client to Peak shall be
charged separately.
Article 11 Invoicing and Payment
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The Client shall make a payment within the agreed time, but in any case no later than
fourteen days from the invoice date, without deduction, discount, or debt set off.
Payment shall be in Legal Dutch Tender by means of a transfer to a bank account
indicated by Peak.
At all times Peak is entitled to require advance payment and/or to the provision of
adequate (prior) security by the Client with regard to the payment(s) due and to
discontinue the execution of an assignment if the advance payment and/or security
required are not provided.
If the Client has not made a payment within the term referred to under 11.1, and after
Peak has sent the Client at least one demand for payment, Peak may without further
notice of default and without prejudice to Peak’s other rights charge statutory interest
from the due date until the date the sum is fully settled.
All judicial and extra-judicial (debt-collection) costs reasonably incurred by Peak as a
result of the Client’s non-compliance with payment obligations shall be borne by the Client.
If Peak believes the Client’s financial position or payment record provides cause for
(additional) security, Peak may require such from the Client immediately in a form
determined by Peak. If the Client fails to provide the required security, Peak is entitled to
suspend further execution of the agreement without prejudice to his other rights and all
that payable by the Client to Peak for whichever reason shall become due and payable
immediately.
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In the case of a jointly issued assignment – in so far as the activities have been
performed on behalf of joint Clients – the Clients are severally responsible for payment of
the invoice sum.
The Client shall never be entitled to any deduction of, or, to settlement against, any claim
that he believes he has against Peak. If the Client believes that he can assert his rights
with regard to the agreement with Peak, this shall not discharge him from his own
obligation to pay according to the agreed manner and he is not entitled to suspend his
own obligation to pay.
Payments made by the Client shall always first serve to settle any interest and costs due
and subsequently to settle the longest due and outstanding payable invoices, even if the
Client states that the payment made relates to a later invoice.
Peak is authorised to suspend compliance with all his obligations, including among others
the delivery of documents or other matters to the Client or third parties, until the moment
when all due and payable debts have been fully paid by the Client.
Article 12 Complaints
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Complaints in relation to the quality of the activities carried out and/or the invoice sum
should be made known to Peak in writing within 60 days of the dispatch date of the
documents or information to which the Client’s complaint pertains, or within 60 days of
discovering the defect if the Client shows that he could not in reasonableness have
discovered this earlier.
Complaints as referred to in the first paragraph do not suspend the Client’s payment
obligations.
In the case of a rightfully issued complaint, Peak has the choice of adjusting the
remuneration charged, improving or redoing the disapproved activities free of charge, or
not completing (part of) the assignment against a restitution in proportion to the
remuneration already paid by the Client.
Article 13 Termination
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The Client and Peak may terminate the agreement at any time.
The other party shall be informed of the termination in writing.
Article 14 Liability
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Peak shall carry out his activities to the best of his ability and shall take the required due
care and attention as may be expected from Peak. If a mistake is made, because the
Client provided incorrect or incomplete information, Peak is not liable for any damage
caused. If the Client proves that he suffered damage due to a mistake by Peak that
could have been avoided with due care and attention, Peak is liable for damages,
unless it concerns a matter of an intentional act or comparable gross negligence on the
part of the Client. Peak’s liability is limited to a maximum of three times the
remuneration for the relevant assignment that the Client has paid or still has to pay for
this assignment that concerns the mistake. In case of assignments with longer
turnaround time than six months, the liability referred to here will be limited to a
maximum sum invoices for the last six months that the Client has paid or still has to pay
for the assignment that concerns the mistake.
In all cases Peak’s liability is limited to a maximum of the amount that is paid in the case
concerned under the (professional) liability insurance, including the amount of the
excess.
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The Client indemnifies Peak against claims by third parties for damage caused by
incorrect or incomplete provision of information by the Client to Peak, unless the
Client proves the damage is caused by intention or comparable gross negligence
by Peak. In so far as non- compliance by the Client with his contractual and/or
statutory obligations causes liability of Peak against third parties, the Client
indemnifies Peak against all consequences of this liability. The Client is liable for all
damages that Peak or third parties may suffer as a result of a shortcoming or a
wrongful act on the part of the Client.
The limitation of liability as stipulated by point 1 and 2 of this article also applies to
third parties engaged by Peak for the execution of the assignment, which third
parties have direct recourse to this restriction of liability.
Peak shall not be liable for the damage the Client suffers as a result of the application
of the provisions concerned, irrespective of whether any reporting by Peak, in
retrospect, with regard to the facts and circumstances, in reasonableness should not
have taken place. The Client indemnifies Peak against claims by third parties
resulting from the application of the provisions concerned, irrespective of whether a
report by Peak, in retrospect, with regard to all facts and circumstances, in
reasonableness should not have taken place.
Peak shall not be liable for the damage the Client suffers as a result of the use of
(electronics) means of communication (for example the damage caused by delay,
failure to deliver, disclosure, interception or manipulation of electronic messages by
third parties, the damage caused by used hardware or software or the damage
caused by viruses and the like).
Article 15 Time limit
In so far as not stated differently in these General Terms and Conditions, the right to claim and
other powers the Client may have towards Peak in relation to the activities carried out by Peak
lapse in any case one year after the moment at which the Client was aware of or could in
reasonableness, have been aware of the existence of these rights and powers.
Article 16 Applicable law and choice of forum
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All agreements between the Client and Peak shall only be governed by Dutch law.
Any disputes resulting from an agreement concluded with Peak shall exclusively be
decided upon by the competent Court in Rotterdam.
Contrary to the provisions in paragraph 2, the Client and Peak are authorised to
submit disputes to an arbitration board.
In the event of disputes concerning the interpretation of these General Terms and
Conditions, the Dutch text shall be binding.
May 2015