General terms and conditions
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.
ITAA: the Belgian Institute for Tax Advisors
and Accountants (www.itaa.be);
5.
Staff
member: every
Partner, Director, Employee, Appointee or Self-employed member of the
Practitioner's staff;
6.
Non-recurrent
Assignment: a
non-repetitive, one-off Assignment which is complete following its fulfilment;
7.
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);
8.
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);
9.
Agreement: the Engagement Letter (potentially
extended and/or modified) 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;
10.
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;
11.
Recurrent
Assignment: an
assignment consisting of successive deliverables of the same nature, to be
provided repeatedly against deadlines known in advance;
12.
Documentation: the Client's books, documents and
evidential documentation;
13.
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;
14.
Money
Laundering Act: the Act of
18 September 2017 preventing money laundering and the financing of terrorism,
and limiting the use of cash.
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 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.
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. The Practitioner is required by virtue
of the Money Laundering Prevention Act to request and verify 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.
4.2. 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.
4.3. 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.
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.
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 in which
the Agreement came into effect shall be taken as the basic index. 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 Assignments shall be deemed to have been entered into for an
indeterminate period; an Agreement relating to a Non-recurrent 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
Non-recurrent 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.
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.
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.
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.
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.
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.
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.
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.