I. DEFINITIONS
Terms written with initial capitals used in
the Agreement shall have the following meanings:
1. General
Terms and Conditions: the Practitioner's General Terms and Conditions,
regardless of the medium in which these are published (in hard copy, by e-mail
or other electronic medium, or on the Practitioner's website);
2. Practitioner:
the company STUYTS ACCOUNTING & TAX BV, with registered premises at 8200
Brugge, Koningin Astridlaan 2A, registered in the register of companies with
VAT number BE0405.272.631 (RPR Gent, Brugge department) and recognised by the
Belgian Institute for Tax Advisors and Accountants (ITAA) with registration
number 50744134, as well as their staff; the Practitioner (website: www.stuytsaccounting.be) can be contacted at their premises as
follows:
-
Bruges: 8200
Brugge, Koningin Astridlaan 2A, T+32 50 40 66 40, E info@stuytsbrugge.be
-
Ghent: 9000
Gent, Ottergemsesteenweg 367-369, T +32 9 391 19 50, E info@stuytsgent.be
-
Brussels:
1000 Brussel, Congresstraat 35, T +32 2 229 19 36, E info@stuytsbrussel.be;
3. Client:
the legal or natural person or persons entering into an Agreement with the
Practitioner;
4. DAC6 legislation: The Act of 20 December 2019 on the transposition of the Council's
Directive (EU) 2018/822 of 25 May 2018 amending Directive 2011/16/EU as regards
mandatory automatic exchange of information in the field of taxation in
relation to reportable cross-border arrangements (the DAC6 Act); The Decree of
26 June 2020 amending the Decree of 21 June 2013 relating to administrative
cooperation in the area of taxation, in relation to the mandatory automatic
exchange of information in the area of taxation in relation to reportable
cross-border arrangements (the Flemish DAC6 Decree); The Decree of 1 October
2020 concerning the amendment of the Decree of 6 May 1999 concerning
assessment, recovery and disputes relating to taxation in the Walloon region,
with a view to the transposition of Directive 2018/822/EU in relation to the
mandatory automatic exchange of information in the area of taxation in relation
to reportable cross-border arrangements (the Walloon DAC6 Decree); The
Ordinance of 29 October 2020 on the amendment of the Ordinance of 26 July 2013
concerning the transposition of the Council Directive 2011/16/EU of 15
February 2011 on the administrative
cooperation in the field of taxation and repealing Directive 77/799/EEG and the
amendment of the Brussels Legal Code on Fiscal Proceedings (the DAC6
Ordinance);
5. ITAA:
the Belgian Institute for Tax Advisors and Accountants (www.itaa.be);
6. Staff
member: every Partner, Director, Employee, Appointee or Self-employed
member of the Practitioner's staff;
7. Non-recurrent
Assignment: a non-repetitive, one-off Assignment which is complete following its fulfilment;
8. Assignment:
the activities and services to be carried out by the Practitioner for the
Client, whether recurrent or non-recurrent, as set out in an Engagement Letter
(whether or not extended and/or modified at the request of or in discussion
with the Client by an additional assignment);
9. Engagement
Letter: a document originating with the Practitioner and describing their
Assignment as well as the terms and conditions applicable to the Assignment
(possibly in deviation from what appears in the General Terms and Conditions);
10. Agreement:
the Engagement Letter (potentially extended and/or modified by an additional
assignment) together with the General Terms and Conditions and other (verbal,
written or electronic) agreements and/or legal or other actions on the basis of
which the Practitioner carries out an Assignment;
11. Privacy
Act: the applicable legislation relating to data protection and in
particular the General Data Protection Regulation (Regulation (EU) 2016/679)
and the relevant national implementing legislation;
12. Recurrent
Assignment: an assignment consisting of successive deliverables of the same
nature, to be provided repeatedly against deadlines known in advance;
13. Documentation:
the Client's books, documents and evidential documentation;
14. Law:
the European and Belgian Acts and Regulations, as well as deontological and
other professional standards applicable at the time of implementation of the
Assignment;
15. Money
Laundering Act: the Act of 18 September 2017 preventing money laundering
and the financing of terrorism, and limiting the use of cash.
II. SCOPE
2.1. The General Terms and Conditions shall apply
to all professional relationships between the Practitioner and the Client.
The Client will receive a
copy of the General Terms and Conditions from the Practitioner (in hard copy or
by e-mail or some other electronic medium) prior to the making of the
Agreement. Considering that the Client has received a copy of the General Terms
and Conditions, the Client is deemed to be cognisant of the General Terms and
Conditions and to accept these without reservation, in the event that the
Client calls upon the services of the Practitioner. The General Terms and
Conditions shall then apply to every Assignment, except where expressly
otherwise determined in the Engagement Letter.
2.2. The Client's General Terms and Conditions or
Terms and Conditions of Purchase shall not apply.
2.3. The Practitioner hereby reserves the right to
amend the General Terms and Conditions in conformity with amendments to the
Practitioner's operational activities, or economic and/or legal exigences. The
Practitioner shall inform the Client about the amended General Terms and
Conditions at least one (1) month prior to their coming into force, by e-mail
or some other electronic medium. In the absence of a written objection within
one (1) month following that notification, the Client shall be deemed to have
accepted the amended General Terms and Conditions without reservation. In such
a case, the Client has the option of cancelling the Agreement free of charge by
means of notice by registered post at the time when the amended General Terms
and Conditions come into effect, but only where the amendments entail a
substantial increase in the Client's contractual obligations.
III. COMING
INTO EFFECT OF AGREEMENT
3.1. The Agreement shall come into effect and
commence when: (i) the Practitioner receives the Agreement signed by the Client
(i.e. the Engagement Letter including the General Terms and Conditions); or, if
this takes place earlier (ii) the Practitioner commences the implementation of
the Assignment at the express request of the Client, after the Client has
received the Agreement.
3.2. The Agreement constitutes the entirety of the
agreement between the Practitioner and the Client in relation to the
Assignment, to the exclusion of all earlier written and verbal agreements, quotes,
undertakings and notifications relating to the topic of the Assignment. The
Practitioner's Assignment is limited to what appears in the Engagement Letter,
but it may be extended or otherwise modified at the simple request of the
Client. The Practitioner will confirm the conditions and stipulations of the
extension or modification of the Assignment as soon as possible by e-mail to
the Client; except in the case of a written objection by the Client within
three (3) working days of the notification, the content of the e-mail
(including attachments) will be deemed to have been accepted without
reservation, and to have been added to the Engagement Letter as an addendum, in
order to form an integral element thereof. In such cases and where the
Practitioner deems it appropriate, a new Engagement Letter or a separate
addendum to the initial Engagement Letter will be drawn up for the Additional
Assignment.
3.3. The accountants and tax advisors associated
with the Practitioner shall provide their services on behalf, and at the
expense, of the Practitioner. In the event that the Client calls upon the
services of an accountant and/or tax advisor employed by the Practitioner, then
the Agreement shall be deemed to have been made between the Client and the
company STUYTS ACCOUNTING & TAX BV; there will therefore arise no
contractual relationship between the Client and an individual accountant and/or
tax advisor employed by the Practitioner.
IV. THE
PRACTITIONER'S DUTY OF IDENTIFICATION AND NOTIFICATION
4.1. Money
Laundering Prevention
4.1.1. The
Practitioner is required by virtue of the Money Laundering Prevention Act to
request and 1verify certain information about the Client, the Client's
Directors and other agents, any beneficiaries, commercial transactions and
business relations. In appropriate cases, the Practitioner is required to
request information on the origin of funds or assets.
4.1.2. The Client
hereby undertakes to provide all information and documentation requested by the
Practitioner, and to notify the Practitioner without delay of any change (but
at the latest within two (2) weeks of the Client's becoming aware of such a
change). Where this does not take place within the specified period, then the
Practitioner can, in principle, not act, and is entitled to immediately
terminate the implementation of the Agreement. The Practitioner may check the
information provided by the Client, making use of external electronic
databases. The information obtained will be retained in the Practitioner's
archives and updated during the period specified in the Money Laundering
Prevention Act.
4.1.3. Notwithstanding
the requirements of professional confidentiality, the Practitioner has, in
certain circumstances, a duty to report to the Financial Information Processing
Unit (Cel voor Financiële Informatieverwerking, or CFI). The Practitioner is
required to immediately notify the CFI of any facts which are suspected to
relate to money laundering or the financing of terrorism, and to hand over all
relevant information and useful documentation.
4.2.Duty of notification of cross-border
arrangement (DAC6 legislation)
4.2.1. The
Practitioner hereby informs the Client that pursuant to the DAC6 legislation,
any intermediaries involved in the devising, the offering, the setting up, the
making available for the implementation, or the management, of the
implementation of certain cross-border fiscal arrangements, or otherwise the
relevant taxpayer are obliged to report such arrangements to the competent
fiscal authorities within a strictly determined period. Depending on the
Assignment to be carried out, the duty of notification under DAC6 is
potentially applicable in the context of the service provision which the
Practitioner provides or has provided, and relates retroactively to reportable
cross-border arrangements set up since 25 June 2018.
4.2.2. For
reasons of professional confidentiality, however, the Practitioner may be
prevented from fulfilling the obligation to notify under DAC6, and in certain
cases from informing other intermediaries involved that they are unable to
fulfil the obligation to notify by virtue of the DAC6 legislation.
In such cases,
the Practitioner shall immediately inform the Client in writing that they are
unable to fulfil their obligation to notify under DAC6 on grounds of
professional confidentiality. In such cases, the Client hereby undertakes to
take the necessary steps with a view to fulfilling the duty of notification
under DAC6. The Client hereby acknowledges that, particularly in the absence of
other intermediaries involved in the same cross-border arrangement, or when no
other intermediary involved fulfils the duty of notification under DAC6, that
duty of notification under DAC6 rests upon the Client. Unless expressly
otherwise stipulated in the Engagement Letter, the Practitioner cannot then be
held liable for the implementation or non-implementation of the DAC6
notification, or the irregularity of such a notification.
The
Practitioner shall, however, provide the Client with the necessary information
at the Client's first request, so that the Client can fulfil his duty of
notification under DAC6.
4.2.3. If
desired, the Client may request in writing that the Practitioner carries out
the notification under DAC6 in the name, and on account of, the Client, by
means of a special mandate.
In view of the
Practitioner's statutory professional confidentiality and taking account of the
strict legislatively determined deadline for the fulfilment of the duty to
notify under DAC6, the Practitioner is obligated to notify under DAC6 on
condition that the Client:
(i)
Has addressed his request to the Practitioner
at the latest within three (3) working days following receipt of the
notification (of inability to notify under DAC6) referred to in Article 4.2.2,
and
(ii)
Has returned the signed Engagement Letter containing
the conditions and stipulations of the special mandate to notify the
Practitioner under DAC6 at the latest within three (3) working days following
its receipt. In deviation from what appears in Article 3.1, an Agreement
involving an assignment to notify under DAC6 shall not enter into effect and
commence unless the Practitioner has received the Agreement signed by the
Client (i.e. the Engagement Letter including the General Terms and Conditions)
within the aforementioned period.
V. IMPLEMENTATION
OF THE AGREEMENT
5.1. Independence of the Practitioner
5.1.1. The Practitioner shall act
as an independent service provider in implementing the Agreement. Neither a
stipulation in the Agreement nor the attitude of the Parties during the
implementation of the Agreement may be regarded as expressing any
employer-employee relationship, or the establishment of any temporary or
permanent company, association. joint venture or any other form of
collaboration between the Parties.
5.1.2. The Practitioner will
provide the services to the Client in complete independence and to the extent
that a conflict of interests or the Law do not prevent the implementation of
the Agreement. The Practitioner may carry out the Assignment according to his
own judgement and decide which member(s) of staff will be engaged for this
purpose. The Client accepts that the Practitioner may call upon the services of
third parties in this connection.
5.1.3. Unless expressly otherwise
stipulated in the Engagement Letter, the Practitioner shall in no way bear any
responsibility for the Client's activities or operations.
5.2. Rights and obligations of the
Practitioner
5.2.1. The Practitioner will
implement the Agreement carefully and with the necessary professionalism and
diligence. The Practitioner shall make all reasonable efforts to implement the
Agreement as would a normal and cautious accountant or tax advisor in the same
situation, taking account of the Law, of the urgency and complexity of the
Assignment, the diligence of the Client (including diligence in the provision
of information) and other circumstances. Except where otherwise stipulated by
Law, the Practitioner does not enter into any duty of result and the
implementation of the Agreement involves a duty of effort.
5.2.2. Unless expressly otherwise
stipulated in the Engagement Letter or in Law, the Assignment is not intended
to achieve, and the Practitioner is therefore not obliged to carry out:
(i) the detection of any fraud, false
declarations, errors or contraventions of the Law;
(ii) checks on the accuracy, completeness and
reliability of the information transferred to him by the Client or his agents,
nor of any deeds, contracts, inventories, invoices or evidence of any nature
which are entrusted or presented to him by the Client or the Client's agents as
being documentary evidence or documents which must serve as such. In that sense
the Practitioner does not guarantee the accuracy of the information included in
the annual accounts and/or tax submissions supported by such information.
Where the Practitioner is explicitly tasked
with the auditing of the accounts, this shall involve checking on a sampling
basis, and not a systematic investigation of all documents and evidential
documentation. The Practitioner will report any VAT-related errors to the
Client. The absence of any comments on the part of the Practitioner shall not
be taken to guarantee the regularity nor the accuracy of the documentation
drawn up or the transactions carried out by the Client.
5.2.3. The Practitioner shall not
be deemed to be cognisant of information from other assignments, unless this is
explicitly stated in the Engagement Letter.
5.2.4. The Practitioner, as well
as their Staff, are required to maintain professional confidentiality, subject
to the application of the Money Laundering Prevention Act. They will maintain
confidentiality with regard to all instructions and information which they
receive in the course of the implementation of the Agreement. They may nevertheless
pass on confidential information to the extent necessary (on a need-to-know
basis) to other parties (for example lawyers, accountants, tax advisors etc.)
working on the Client's dossier.
5.3. Rights and obligations of the Client
5.3.1. The
Client hereby undertakes to lend his cooperation to the Practitioner on his own
initiative and throughout the entire duration of the Agreement, including the
timely, complete, detailed accurate and non-misleading provision of all
documents, information and explanations necessary for the implementation of the
Assignment. The Client shall inform the Practitioner without delay of any
changes to the information provided by the Client.
The Client furthermore
undertakes, inter alia:
(i) to carry out the activities for which he is
responsible, in accordance with the Agreement;
(ii) to inform the Practitioner in a timely
fashion of any information, event or development which might affect the
implementation of the Assignment;
(iii) to provide the Practitioner at all times and
at the Practitioner's first request with correct, accurate and updated
information, and to inform the Practitioner of any later changes, relating in
particular (but not exhaustively) to any significant changes to his financial
situation, monetary resources, Directors and other agents, any beneficiaries;
this within a period of two (2) weeks following the Client's becoming aware of
such information or changes thereto;
(iv) to inform the Practitioner without delay of
any substantial and relevant facts which might imperil the continuity of the
Client's business, for example, but not limited to: any non-payment, from the
first overdue payment, relating to any fiscal or social security agency, or any
other creditor, debts relating to social security (including late quarterly
payments, demands from the social security agency RSZ), tax liabilities
(including VAT, income tax, payroll tax), preventative or executive seizure or
notice thereof, late submission of, or failure to submit, annual accounts, a
judgement in absentia or a judgement in a defended action where the payable
principal is not disputed by the Client, negative cash flows, refusal of credit
by suppliers, official deletion from the companies register, significant
operational losses and/or net assets lower than half of the company capital.
The Client hereby accepts that the Practitioner has no active investigatory
assignment in this connection, and cannot be held liable in such cases;
(v) to confirm in writing at the first request of
the Practitioner that the information, documents, explanations and disclosures
provided are correct and complete;
(vi) to verify the documents, reports and
declarations drawn up by the Practitioner at the Practitioner's first request
(including their conformity with the Client's instructions and the information
provided by him) and where appropriate, to provide the Practitioner as soon as
possible with his ratification, or any observations, within the specified
period.
5.3.2. In the
event that the Client makes use of information from third parties or provides
this to the Practitioner, the Client shall ensure that permission for this is
obtained in advance. The Client is responsible for relationships with such
third parties, including the payment of their fees and expenses. The
Practitioner shall in no circumstances be liable for the inaccuracy,
incompleteness and/or unreliability of information provided which originates
with third parties.
5.3.3. The Practitioner is
entitled to remuneration for additional deliverables resulting from
non-compliance by the Client with Article 5.3.1 and/or 5.3.2.
Neither may non-compliance by the Client with
Article 5.3.1 and/or 5.3.2 result in the Practitioners
inability to complete the Assignment or complete it in good time, and this may
lead to the formulation of a reservation in one or more of the documents which
the Practitioner is required to draw up by virtue of the Assignment. In such
cases the Practitioner may in no circumstances be held liable for non-compliance
with the deadlines set down in Law, or the non-timely completion of fiscal,
social security or other formalities which fall within the scope of his
Assignment. Furthermore, the Practitioner shall be entitled, according to the
Practitioner's own judgement, (i) to suspend fulfilment of one or more of his
obligations under Article VI until such time as the Client has
completely fulfilled his duty to provide information or (ii) to immediately
terminate the Agreement in accordance with Article 9.3. In such cases, the
Practitioner is entitled to payment of all fees and expenses for deliverables
already carried out, without prejudice to his entitlement to full compensation
for damages where the damage actually suffered exceed this amount.
5.4. Communications
5.4.1. The Client hereby
undertakes to provide the Practitioner with accurate contact details, and to
immediately inform the Practitioner of any changes to these. The Client shall
ensure that the indicated communications facilities continue to function at all
times, and shall offer adequate guarantees in the area of security and
confidentiality.
5.4.2. The Client hereby accepts
that the Parties will communicate with one another electronically, and that
e-mails will be transmitted unencrypted. The Parties acknowledge that
electronic communication is dependent on the intervention of third parties,
that the use of electronic communication entails risk, that it is not always
possible to transmit electronic data completely, securely, without error and
virus-free, and that as a result, electronic communications may be lost,
intercepted, falsified, destroyed, delayed or made unusable. The Parties
acknowledge that no system or procedure can completely exclude such risks, and
confirm that they accept these risks, that they permit the use of electronic
communication, and that they will use all suitable and available means to
detect the most widespread viruses before electronically transmitting
information. Each Party is responsible for the protection of their own systems
and data. The Practitioner may in no circumstances be held liable for any
damage suffered through the use of electronic communication between the
Parties.
5.5. Reporting by the Practitioner
5.5.1. The Practitioner shall be
bound solely by written reports, recommendations and other documentation which
are finalised and which have been signed by an appropriately authorised Member
of Staff. The Client may not rely on verbal, interim or draft reports,
recommendations or other documents in whatever form; the Practitioner shall in
no circumstances bear any responsibility for the content or the use of such
documents.
5.5.2. In the context of the
implementation of the Assignment, the Practitioner is not obliged to update
reports, recommendations or other documents passed to the Client by the
Practitioner on grounds of (i) amendments to the Law, (ii) changes to the
information available or (iii) events taking place following the termination of
the Assignment. The Practitioner is therefore also not liable where such
documents are no longer valid, useful or current.
5.5.3. The reports,
recommendations and other documents provided by the Practitioner in
implementation of the Assignment shall not constitute the only element to be
taken into account by the Client in making his decisions. The Client shall
remain solely responsible for the decisions he makes in the context of his
operations.
5.5.4. All reports,
recommendations and other documents (whether or not in draft form) which the
Practitioner passes to the Client are intended exclusively for the benefit and
use of the Client, and for the purpose set out in the Engagement Letter. Except
where otherwise determined by Law, the Practitioner's reports, recommendations
and other documents shall not be transferred to any third party or otherwise
distributed, or used for any other purpose without the prior written permission
of the Practitioner. Where appropriate, the Practitioner may make his
permission for their distribution or their use by third parties subject to limitations
or conditions. The Practitioner shall in no circumstances be liable with
respect to third parties who place their trust in the unauthorised use of these
documents.
5.6. Retention of documents
5.6.1. The Client is to hand over
all his Documentation to the Practitioner. The Practitioner may unilaterally
decide to take the Documentation to his own office.
5.6.2. The Practitioner may retain
the Documentation during the time required for the implementation of his
Assignment. During that period, the Client shall be entitled to inspect such
Documentation, whether in person, via appointees, mandated representatives or
bearers of a written authorisation, on condition that the Documentation in
question is the property of the Client. Access will provided in consultation
with the Practitioner and during office hours.
5.6.3. The Client hereby
undertakes to collect his Documentation at the first request of the
Practitioner. The risk of partial or total loss of, unusability of or damage
to, the Documentation shall pass to the Client on the date when the
Documentation is made available to the Client, regardless of whether or not the
Client has retrieved the Documentation or taken receipt of it. In such cases,
the Practitioner may not be held liable for the loss of, unusability of or
damage to, the Documentation.
5.6.4. The Client will be
responsible for the retention of the Documentation during the retention period
required by Law.
5.7. Responsibility of the Client for his
own operations
5.7.1. The Client is solely
responsible for the protection of his own interests and capital, and is
therefore responsible at all times for research into, and verification of
(inter alia and non-exhaustively), the feasibility and soundness of proposed
actions and transactions, the intentions of the parties involved, the accuracy
of financial accounts, etc.
5.7.2. The Client must, in
particular, ensure the prevention of fraud, errors and contraventions of the
Law. The Practitioner shall in no circumstances be liable for any damage
resulting from, or related to, fraudulent or negligent acts or omissions, false
declarations or breaches of the Law on the part of the Client or entities
associated with the Client, their Partners, Directors, employees, appointees,
self-employed workers or other agents, co-contractors or third parties.
VI. SUSPENSION
OF IMPLEMENTATION OF THE AGREEMENT
6.1. In the event that the Client remains in
default of one or more obligations, the Practitioner shall be entitled to
suspend fulfilment of his obligations under the Agreement until such time as
the Client has met his obligations, without any requirement for judicial
intervention.
6.2. The Practitioner shall inform the client
accordingly in writing. Where appropriate, the
Practitioner shall inform the Client about any urgent and necessary activities
and legal or other actions.
6.3. All costs and charges (including penalties
and damages) resulting from the suspension of the Agreement shall be borne by
the Client.
6.4. The Practitioner shall in all circumstances
be entitled to payment of the fees and expenses for deliverables already
carried out.
VII. FEES
AND EXPENSES
7.1. The Practitioner will carry out the
Assignment against payment of fees and expenses.
7.2. Fees
The fees are set out in the
Engagement Letter. The Practitioner's fees will be calculated on the basis of
the number of hours worked, multiplied by the hourly rates agreed in the
Engagement Letter, or on a fixed fee basis. The fees may vary depending on the
level of responsibility of the Staff Members involved in the Assignment, their
experience or seniority, and the nature and complexity of the Assignment. The
status of a Staff Member may evolve over time; in that case the hourly rate for
a particular Staff Member may evolve over the course of the Agreement.
7.3. Modifications to fees
The hourly rates may be
modified annually in line with the Health Index, as follows: new hourly rate =
(previous hourly rate x new index)/basic index. The index figure for the month
of December in the year preceding the year in which the Agreement came into
effect shall be deemed to be the basic index figure. The fixed fee may be
modified, where appropriate in compliance with the procedure set down in Law,
where during the implementation of the Assignment it is found that the actual
circumstances deviate from the assumptions made during their initial
determination, or where circumstances arise over which the Practitioner has no
control and because of which, additional deliverables are required.
7.4. Expenses
The Practitioner will
charge the following expenses, without effect on the fees:
(i) dossier-specific expenses (including carriage
charges, photocopying, travel expenses, legal books etc.) will be charged in accordance
with the applicable standard rates, which may be consulted on request;
(ii) expenses paid out in advance: in the event
that the Practitioner pays fees or expenses to third parties on behalf of the
Client (including publication costs for the Nationale Bank etc.) then the
Client must repay the amounts paid out to the Practitioner; these expenses paid
out in advance will be shown separately on the invoice, at cost price.
7.5. Advances
The Practitioner reserves
the right to demand advance payment of fees and expenses, and to commence
implementation of the Assignment only following such payment. The Practitioner
shall be entitled to deduct the commission from the fees and expenses
associated with the Assignment as soon as this is incurred, and will in any
event offset this in the final invoice.
7.6. Fees and expenses are calculated excluding
taxes and levies. The Client is to pay all taxes and levies for which he is
legally liable.
VIII. INVOICING
- PAYMENT CONDITIONS
8.1. The fees, expenses and advance payments will
be invoiced in accordance with the time frame set out in the Engagement Letter.
In the absence of such a time frame, the fees, expenses and advance payments
will be invoiced on a monthly basis, to the extent that the Assignment is
completed, even if the Assignment is not yet complete.
8.2. Except where expressly otherwise specified in
the Engagement Letter, invoices shall be payable within thirty (30) calendar
days following invoice date. Where the Agreement is entered into by several
different legal or natural persons, they shall each be jointly and severally
liable for payment of the invoice.
8.3. In the event of non-payment of an invoice
(whether an advance invoice, an interim invoice or a final invoice) on the due
payment date, the following amounts will be payable by operation of law from
the following day, and without any requirement for notice of default: (i) late
payment interest equivalent to the legislatively determined interest rate on
the unpaid invoice amount, determined in accordance with the Act of 2 August
2002 Preventing Payment Arrears; as well as (ii) standard fixed damages at 10%
of the unpaid amount, with a minimum of 250.00 Eur, together with expenses of
35.00 EUR for each notice of default, without prejudice to the Practitioner's
entitlement to claim a higher level of compensation on provision of evidence of
higher levels of damage actually suffered.
8.4. In such cases, all claims against the Client
as yet not due shall be payable immediately by operation of law, without any
requirement for notice of default and without any requirement to take account
of any permitted payment conditions.
8.5. In the event of non-payment of undisputed
amounts, the Practitioner shall be entitled, according to his own judgement, (i)
to suspend compliance with one or more of his obligations under
Article VI, until such time as the Client has completely fulfilled his
payment obligations, or (ii) to immediately terminate the Agreement in
accordance with Article 9.3. The Practitioner shall not be liable for any
damage which may arise from the suspension of implementation of the Assignment,
or the termination of the Agreement.
8.6. All disputes in relation to invoices must be
submitted to the Practitioner by registered post within fifteen (15) calendar
days, stating reasons. In the absence of a timely and reasoned objection, it is
assumed that the Client has accepted the invoice.
IX. PERIOD
AND TERMINATION
9.1. Period
9.1.1. The date of coming into
force of the Agreement will be stated in the Engagement Letter.
9.1.2. Except where otherwise
determined in the Engagement Letter or in the Law, an Agreement relating to a
Recurrent Assignment or Non-recurrent Assignments shall be deemed to have been
entered into for an indeterminate period; an Agreement relating to a Specific
Assignment shall be deemed to have been entered into for a determinate period.
9.2. Cancellation
9.2.1. Agreement for an
indeterminate period - Either party may cancel an Agreement for an
indeterminate period at any time without providing reasons, by means of notice
of cancellation by registered letter. A Practitioner cancelling the Agreement
must comply with a reasonable period of notice of termination of a maximum of
one (1) month (this to take account of the current legislatively determined
periods of notice and in order to allow the Client to find another accountant
and/or tax advisor). The period of notice of termination shall commence on the
third day following the date of the signed notice of termination. The
stipulations of the Agreement shall remain in full force during the period of
notice of termination. In the event of cancellation by the Client, the
implementation of the Assignment by the Practitioner will be terminated
immediately upon receipt of the signed notice of termination.
9.2.2. Agreement for a
determinate period - An Agreement for a determinate period will
terminate upon expiry of the agreed period, or upon completion of the Specific Assignment.
9.3. Immediate
termination on specific grounds
9.3.1. Notwithstanding the
stipulations of Article 9.2, either Party may terminate the Agreement at
any time, stating the grounds, without any notice of termination, without any
prior judicial intervention and without any compensation (for damages), in the
event that the other Party remains in default of rectifying their shortcomings
within the specified period, despite receiving a notice of default stating the
grounds and providing a period for rectification of at least seven (7) calendar
days.
9.3.2. Notwithstanding the
stipulations of Article 9.2, the Practitioner may terminate the Agreement
at any time by registered post stating the grounds, without any notice of
termination, without any prior judicial intervention, without any prior notice
of default and without any compensation (for damages), where any of the
following situations arises:
(i) the implementation of the Agreement, or part
thereof, will or may compromise the Practitioners necessary independence ;
(ii) the implementation of the Agreement, or part
thereof, will or may result in the Practitioner contravening the Law;
(iii) in the event of an insolvency procedure,
dissolution, collective settlement of debt, patent incapacity, cessation of
payments or the Client's bankruptcy or application for bankruptcy;
(iv) in the event that some or all of the Client's
assets are seized;
(v) in the event that the Client initiates a
liquidation or similar procedure;
(vi) in the event of the cessation of the Client's
activities;
(vii) in the event of a situation of Force Majeure,
as specified in Article XIII.
9.4. Consequences of termination
9.4.1. The consequences of the
termination or judicial or extra-judicial dissolution shall have effect
exclusively for the future (ex-nunc dissolution).
9.4.2. In the event of
termination, regardless of the reason:
(i) the fees relating to the deliverables already
carried out (or where a fixed amount was agreed, an amount on a pro rata
basis), as well as the expenses incurred up to the time of termination of the
Agreement, shall continue to be payable by the Client, regardless of whether
these had already been invoiced by the Practitioner. The due amounts shall be
payable immediately.
(ii) the Practitioner shall inform the Client
about the work and the legal and other actions which had been assigned to him,
and which must be urgently and necessarily completed, in order to safeguard the
Client's entitlements;
(iii) the Practitioner will make all books and
documents belonging to the Client available to the Client or his authorised
representative against a receipt. The Practitioner may charge any
administrative costs of closing and handing over the dossier. The Client's access to the online applications offered by the
Practitioner shall, however, end with immediate effect at the time of
termination. Since the charges
associated with the use of online applications are based on annual contracts,
any pro rata amount shall not be repaid to the Client.
X. LIABILITY
AND INSURANCE
10.1. Limitation
of liability
10.1.1. Without prejudice to what
appears elsewhere and insofar as permitted by Law, the Practitioner (and his
Staff Members) shall not be liable for (i) indirect damage resulting from, or
connected with, the implementation of the Agreement, such as, but not limited
to, financial and commercial losses, lost earnings, increased costs, loss of
market share, capital, clientele, commercial opportunities, anticipated savings
or benefits or damage to reputation; and (ii) any loss or damage resulting from
force majeure.
10.1.2. The total liability on the
part of the Practitioner, regardless of the legal grounds, for any damage
resulting from, or connected with, the implementation of the Agreement shall be
exclusively limited to the amount covered by the Practitioner's professional
liability insurance. The Client thereby explicitly accepts that the
compensation for any damage is limited to the amount actually covered and paid
out by that insurance policy, and also limited by the exclusion of cover
provided for in that policy, except in the event of intentional error or
deception on the part of the Practitioner. The Client hereby expressly relinquishes
any entitlement to damages for the amount by which this exceeds the amount
covered and paid out by this insurance policy. These limitations also apply to
all claims by virtue of the implementation of the Agreement which might be made
against any Staff Members and other legal or natural persons who qualify as
insured persons within the meaning of the relevant insurance agreement.
10.1.3. In the event that the
professional liability insurance does not cover the damage suffered, the total
liability of the Practitioner and his Staff Members for damage resulting from,
or connected with, the implementation of the Agreement shall be limited to an
amount (made up of the principal, interest, costs and any penalties) equivalent
to a maximum of five (5) times the fee invoiced by the Practitioner for the
implementation of the Assignment in the twelve (12) months preceding the loss.
10.1.4. Where it appears that two
or more losses result from one and the same error, they shall be deemed to
constitute a single loss and the liability of the Practitioner and his Staff
Members shall be limited to the highest amount applicable to the Assignment or
Agreement in question.
10.2. The
Practitioner's insurance policy
10.2.1. In compliance with the
Law, the Practitioner has arranged civil and professional liability insurance
cover approved by the ITAA. The Practitioner and his Staff Members are insured
through a "Collective Insurance Policy for Civil and Professional Liability
for Tax Advisors and Accountants, Members of the Institute of Tax Advisors and
Accountants" endorsed by the IBA/ITAA (policy number NCN690001093),
currently with Allianz Benelux NV (lead insurer share 50%), A.I.G. Europe NV
(share 25%) and ZURICH Benelux (share 25%); insurance brokers: MARSH SA (B-1160
Brussels, Herrmann-Debrouxlaan 2) and WILLEMOT NV (B-9000 Ghent, Coupure 228).
Payment by the insurer (under the specific stipulations of the endorsed
insurance policy) amounts in principle to €2,500,000 for each loss. This amount
will be increased to €3,000,000 for each claim relating to special assignments
as specified in Articles 3,6° to 8° of the Act of 17 March 2019. The maximal
insured limit in each insurance year amounts to €5,000,000 per insured person.
This insurance policy applies worldwide for activities carried out in Belgium,
subject to the clarifications and exceptions included in the policy, and
excluding any claim for compensation under the law of or within the territory
of the USA or Canada or any territory subject to the legal jurisdiction of the
USA or Canada. Where the specific conditions of the insurance cover are
concerned, the Practitioner refers to the text of the endorsed insurance
agreement, which shall prevail over the foregoing summary. A certificate of
insurance will be provided to the Client free of charge on request.
10.2.2. The Practitioner offers
the Client the option of increasing the insurance cover, at the Client's
expense. On condition that the Client informs the Practitioner in writing of
this prior to the coming into effect of the Agreement, the Practitioner shall
keep the requested additional insurance cover in place, provided and to the
extent that the Client makes the advance payment of the relevant premiums in
good time.
XI. COMPLAINTS
11.1. All disputes relating to the
implementation of the Assignment must be reported to the Practitioner by
registered post within fifteen (15) calendar days following the dispatch date
of the documents or information disputed by the Client, or after the Client
becomes aware of the defect, the Client demonstrating that he could not
reasonably have been aware of the defect earlier.
11.2. Disputes shall not suspend the Client's
obligation to make payment.
11.3. In the event of a justified complaint,
the Practitioner may at his own discretion provide a suitable remedy (such as,
but not limited to, a reduction in the fee or the full or partial
reimplementation of the Assignment without any additional charge).
11.4. Any claim against the Practitioner by
the Client shall lapse in any event if this is not brought before the competent
Court within a period of one (1) year from the time when the Client became
aware or reasonably could have been aware of the fact(s) upon which his claim
is based.
XII. INDEMNIFICATION
The Client hereby
undertakes to safeguard or, if necessary, indemnify the Practitioner at the
latter's first request against any damage arising from claims or demands from
third parties resulting from, or connected with, any shortcoming or any
contravention by the Client of one or more of his obligations by virtue of the
Agreement.
XIII. FORCE
MAJEURE
13.1. In the event of force majeure, a Party
is not required to fulfil any obligation towards the other Party, and they
shall be free of any liability by operation of law.
13.2. Force majeure shall be taken to mean
any circumstance independent of the will of a Party which was unforeseeable at
the time of concluding the Agreement and which impedes the implementation of
the Agreement by that Party, whether in whole or in part and whether
temporarily or permanently. To the extent that they are not already
included in the above, the following circumstances shall be regarded as
force majeure affecting the Practitioner, even if they were already foreseeable
at the time of concluding the Agreement: (i) the non-availability (in good
time) of data, information and/or disclosures which were to be provided by the
Client and/or his appointee(s); (ii) incorrect and/or incomplete information
provided by the Client and/or his appointee(s); (iii) a changed situation
with, or a decision by, the Client and/or his appointee(s) which
significantly and adversely affects the implementation of the
Agreement; (iv) shortcomings by, or force majeure affecting, third parties
to which the Practitioner or Client appeals; (v) defects or faults in a third
party's equipment, apparatus, software and the like; (vi) changes to
regulations or guidance issued by a government agency, or other acts (de
jure or de facto) by
government; (vii) disturbances affecting the internet, computer
network or telecommunications facilities; (viii) power cuts; (ix) strikes,
go-slows or other labour disputes; (x) sickness, epidemics or pandemics; (xi)
natural disasters, poor weather conditions, fire or explosion; (xii) war,
terrorism or serious political unrest; (xiii) theft; (ivx) machinery breakdown
or other operational disturbances, and all external causes, foreseen or
unforeseen, over which the Practitioner has no power.
13.3. Where the situation of force majeure is
of a temporary nature, then the relevant party is entitled, without judicial
intervention, to suspend the implementation of the Agreement, until the
situation of force majeure has passed, without any liability to pay for damages
in this connection. In such circumstances the Parties will make all reasonable
efforts to limit the consequences of the condition of force majeure. Where the
condition of force majeure continues for more than two (2) months, then either
Party shall be entitled to terminate the Agreement with immediate effect,
without any liability to pay for damages.
13.4. The consequences of force majeure shall
not prejudice the Practitioner's entitlement to demand payment for deliverables
already completed.
XIV. PROHIBITION
ON POACHING OF EMPLOYEES
14.1. The Client and the Practitioner
hereby expressly undertake not to employ any member of staff of the other
Party, or to have them carry out activities in some other way, whether directly
or indirectly (for example via another legal entity), throughout the entire
duration of the Agreement and for a period of twelve (12) months following its
termination, regardless of the reason for termination, without the advance
written permission of the other Party. "Member of staff" shall be
taken here to mean: an employee or self-employed person in the service of, or
who at the time of the implementation of the Agreement was in the service of,
one of the Parties.
14.2. Any contravention of this
prohibition may lead to one-off fixed damages equivalent to the total gross
salary or fee (excluding employer's contributions) for each staff member
involved over the period of 12 months prior to their being poached, without prejudice
to the entitlement to claim a higher level of compensation where a higher level
of damage actually suffered is demonstrated.
XV. INTELLECTUAL
PROPERTY RIGHTS
All intellectual property
rights in the documents and files, whether in hard copy or electronic format,
drawn up by the Practitioner and transferred to the Client in the context of
the Assignment, including, but not limited to, reports, presentations,
recommendations and other documents or files, shall accrue exclusively to the
Practitioner. The transfer of the aforementioned documents or files to the
Client shall not result in the transfer of intellectual property rights. Such
documents or files may be used solely and exclusively by the Client within the
context of, and in connection with, the objective of the Assignment.
XVI. PROCESSING
OF PERSONAL DATA
16.1. The Practitioner will process the
personal data of the Client, the Client's contact person(s) and any other
parties involved, with a view to the administrative management of the Client's
dossier as well as the implementation of the Agreement, in compliance with the
Privacy Act.
16.2. Further information about the
Practitioner's processing of personal data and the rights of the Client, the
Client's contact person(s) and any other parties involved is included in the
Privacy Statement which can be consulted at any time on the Practitioner's
website: www.stuytsaccounting.be.
XVII. TRANSFER
17.1. Neither the Agreement nor the
rights and obligations resulting from it may be transferred to any third party
without the prior written agreement of the other Party.
17.2. The Practitioner is, however, entitled
to transfer the Agreement to another practitioner accredited by the ITAA. In
that event, the Practitioner will inform the Client without delay, and at the
latest within five (5) working days following the transfer.
XVIII. SEVERABILITY
In the event that one or
more of the stipulations of the General Terms and Conditions are found to be
invalid or unenforceable in whole or in part, this shall not affect the
validity or enforceability of the other stipulations or parts thereof. Any such
invalid or unenforceable stipulation or part thereof shall be replaced as soon
as possible by a stipulation which approximates as closely as possible the
nature and intention of the original stipulation.
XIX. WAIVERS
19.1. The fact that the Practitioner
does not take action in response to non-compliance with any stipulation of the
Agreement may not be regarded as a waiver of entitlement by the Practitioner.
The Practitioner may waive any entitlement under the Agreement exclusively in
writing.
19.2. Such a waiver shall expressly
identify the entitlement which is relinquished and shall apply solely to the
situation which gave rise to the waiver.
XX. APPLICABLE
LAW AND DISPUTES PROCEDURE
20.1. The Practitioner is under the
supervision of the ITAA and is subject to the Law and ethical framework
applicable to accountants and tax advisors. Disputes relating to fees and
expenses may be brought before the ITAA's arbitration committee. For further
information on this, please contact the ITAA on: (+32 2 240 00 00).
20.2. The interpretation and implementation
of the Agreement shall be subject exclusively to the Law of Belgium.
20.3. The Parties shall in the first
instance attempt to reach an amicable settlement in good faith. That option
does not, however, prejudice the ability of either party to bring the matter
before the competent Court. All disputes shall fall within the exclusive
jurisdiction of the Courts of Gent, Brugge division.