General terms and conditions

Article 1. Definitions

The definitions indicated with capital letters have the following meaning within the context of these general terms and conditions:

  1. Administration Practice: DKB-finance B.V.;
  2. Documents: All information or data provided by the Client to the Contractor, whether or not contained on (in)tangible media including – but not limited to – paper, CD-ROMs, hard drives, emails, and digital environments, whether or not hosted by third parties, as well as all data created or collected by the Contractor in the context of performing the Assignment/Agreement, whether or not contained on (in)tangible media including – but not limited to – paper, CD-ROMs, hard drives, emails, and digital environments, whether or not hosted by third parties, as well as all other information of any relevance to the execution or completion of the Assignment, whether or not contained on (in)tangible media;
  3. Assignment/Agreement: The service agreement, whereby the Contractor commits to perform certain Work for the Client;
  4. Client: The natural or legal person who has given the Contractor the assignment to perform Work;
  5. Contractor: The Administration Practice that has accepted the Assignment. All Assignments are exclusively accepted and performed by the Administration Practice, not by or on behalf of an individual Employee, regardless of whether the Client has explicitly or implicitly provided the Assignment with a view to its execution by a specific Employee or specific Employees. Articles 7:404, 7:407 paragraph 2, and 7:409 of the Dutch Civil Code are expressly excluded;
  6. Employee: A natural person working for or associated with the Contractor, whether or not based on an employment contract;
  7. Work: All work to be performed by the Contractor for the Client, to which the assignment has been given and which has been accepted by the Contractor, as well as all resulting work for the Contractor.

Article 2. Applicability

  1. These general terms and conditions apply to: all offers, quotations, assignments, legal relationships, and agreements, by whatever name, whereby the Contractor commits/will commit to perform Work for the Client, as well as all resulting work for the Contractor.
  2. Deviations from and additions to these general terms and conditions are only valid if expressly agreed in writing, for example in a (written) agreement or assignment confirmation.
  3. In the event that these general terms and conditions and the assignment confirmation contain conflicting conditions, the conditions in the assignment confirmation shall apply.
  4. The applicability of the Client’s general terms and conditions is expressly rejected by the Contractor.
  5. The underlying Assignment/Agreement – together with these general terms and conditions – represents the full agreements between the Client and the Contractor regarding the Work for which the Agreement is concluded. All previous agreements or proposals between the parties concerning this matter are void.

Article 3. Client’s data

  1. The Client is obliged to provide the Contractor with all Documents which, in the Contractor’s opinion, are necessary for the correct execution of the Assignment, (a) in the desired form, (b) in the desired manner, and (c) in a timely fashion. The Contractor determines what is meant by the desired form, manner, and timely.
  2. The Client guarantees the accuracy and reliability of the Documents provided by him, even if these originate from third parties, unless the nature of the Assignment dictates otherwise.
  3. The Contractor has the right to suspend the execution of the Assignment until the Client has fulfilled the obligations mentioned in the first and second paragraphs.
  4. The Client indemnifies the Contractor against damage resulting from inaccurate or incomplete Documents.
  5. The Client bears the costs and risk for the additional costs and extra hours incurred by the Contractor, as well as any other damage to the Contractor, due to the Client’s failure to provide the necessary Documents for the execution of the Work, either not in time or not properly.
  6. At the Client’s first request, the Contractor will return the original Documents provided by the Client.

Article 4. Execution of assignment

  1. The Contractor shall execute the Assignment to the best of his ability and in compliance with the applicable legal regulations.
  2. The Contractor determines the manner in which the Assignment is executed and by which Employee(s).
  3. The Contractor has the right to have Work performed by a third party designated by the Contractor.

Article 5. Regulations

  1. The Client shall always fully cooperate with the obligations arising for the Contractor from the applicable regulations.
  2. The Client is aware that the Contractor may be required, among other things, but not limited to:
    1. to report certain transactions described in the applicable regulations to the authorities established by the government during the performance of his Work;
    2. to report fraud in certain situations under the applicable regulations;
    3. to conduct an investigation into the Client’s (identity) based on the applicable regulations.
  3. The Contractor excludes any liability for damages arising from compliance with the applicable laws and (professional) regulations.

Article 6. Intellectual property

  1. The execution of the Assignment by the Contractor does not include the transfer of intellectual property rights vested in the Contractor. All intellectual property rights arising during or resulting from the execution of the Assignment belong to the Contractor.
  2. The Client is expressly prohibited from reproducing, disclosing, or exploiting the products containing the Contractor’s intellectual property rights, or products on which the Contractor has acquired user rights – including but not limited to computer programs, system designs, methods, advice, (model) contracts, templates, macros, and other intellectual creations.
  3. The Client is not allowed to provide the products mentioned in the second paragraph to third parties without the Contractor’s prior written consent, other than to obtain an expert opinion on the Contractor’s Work. The Client must impose his obligations under this article on the third parties engaged by him.

Article 7. Force majeure

  1. If the parties are unable to fulfill their obligations under the agreement, not timely, or not properly due to force majeure as referred to in Article 6:75 of the Dutch Civil Code, these obligations will be suspended until the moment that the parties are able to fulfill them in the agreed manner.
  2. If the situation referred to in the first paragraph occurs, the parties have the right to terminate the agreement in whole or in part with immediate effect in writing, without any right to compensation.

Article 8. Fee

  1. The Work performed by the Contractor will be charged to the Client based on time spent and costs incurred.
  2. In addition to the fee, the costs incurred by the Contractor and the invoices of third parties engaged by the Contractor will be charged to the Client.
  3. The Contractor has the right to request an advance payment from the Client.
  4. If, after the conclusion of the Agreement but before the Assignment has been fully executed, fees or prices change, the Contractor is entitled to adjust the agreed rate accordingly.
  5. The fee, if necessary increased by advances and invoices from third parties and costs incurred, will be charged monthly. VAT will be charged separately on all amounts owed by the Client to the Contractor if required by law.

Article 9. Payment

  1. Payment by the Client of the amounts owed to the Contractor must be made within 14 days of the invoice date, without any deduction, discount, or set-off unless otherwise agreed. The day of payment is the day of crediting the amount due to the Contractor’s account.
  2. If the Client has not paid within the term mentioned in the first paragraph, or within another term agreed upon between the parties, the Client is in default by operation of law, and the Contractor is entitled to charge statutory (commercial) interest from that moment.
  3. If the Client has not paid within the term mentioned in the first paragraph, the Client is obliged to compensate all judicial and extrajudicial (collection) costs incurred by the Contractor. The reimbursement of the costs incurred is not limited to the costs possibly determined by the court.
  4. In the case of a joint Assignment, the Clients are jointly and severally liable for the payment of the invoice amount and the interest and costs owed.
  5. If the Contractor considers the Client’s financial position or payment behavior to give reason, or if the Client fails to pay an advance or invoice within the stipulated payment term, the Contractor is entitled to require the Client to provide immediate (additional) security in a form to be determined by the Contractor. If the Client fails to provide the required security, the Contractor is entitled, without prejudice to his other rights, to immediately suspend the further execution of the agreement, and all that the Client owes to the Contractor for any reason is immediately due and payable.

Article 10. Deadlines

  1. If a deadline/date has been agreed between the Client and the Contractor within which the Assignment must be completed, and the Client fails to: (a) make an advance payment if agreed, or (b) provide the necessary Documents on time, in full, in the desired form and manner, the Client and the Contractor will consult on a new deadline/date for completing the Assignment.
  2. Deadlines within which the Work must be completed are only to be regarded as strict deadlines if expressly agreed upon between the Client and the Contractor.

Article 11. Liability and indemnities

  1. The Contractor is not liable for damage suffered by the Client arising from the provision of incorrect or incomplete Documents by the Client to the Contractor.
  2. The Contractor is not liable for any consequential damage, business damage, or indirect damage resulting from the Contractor’s failure to perform, not perform timely, or properly.
  3. The Contractor is only liable to the Client for damage that is the direct result of an (interrelated series of) attributable failure(s) in the execution of the Assignment. This liability is limited to the amount paid out for the case in question under the Contractor’s liability insurance, plus any deductible borne by the Contractor under the insurance.
  4. If, for any reason, the liability insurer does not make a payment, the Contractor’s liability is limited to the amount of the fee charged for the execution of the Assignment. If the Assignment is a continuing performance contract with a term exceeding one year, the aforementioned amount is set at three times the fee charged to the Client in the twelve months preceding the occurrence of the damage. In no case will the total compensation for damage under this article exceed €150,000 per event, whereby a series of related events is considered as one event unless the parties have reason to deviate from this maximum when entering into the agreement given the scope of the Assignment or the risks associated with the Assignment.
  5. The limitations of liability included in this article do not apply if and insofar as there is intent or deliberate recklessness on the part of the Contractor or its executive management.
  6. The Client is obliged to take damage-limiting measures.
  7. The Client indemnifies the Contractor against claims from third parties for damage caused by the Client’s provision of incorrect or incomplete Documents to the Contractor.
  8. The Client indemnifies the Contractor against third-party claims (including employees of the Contractor and third parties engaged by the Contractor) who suffer damage in connection with the execution of the Assignment due to acts or omissions by the Client or unsafe situations in his company or organization.

Article 12. Termination

  1. The Client and the Contractor can terminate the agreement at any time without observing a notice period. If the agreement ends before the Assignment is completed, the Client owes the fee corresponding to the hours worked by the Contractor for Work performed for the Client.
  2. Termination must be in writing.
  3. If termination is initiated by the Client, the Contractor is entitled to compensation for the resulting and reasonably demonstrable loss of occupation, as well as compensation for additional costs already incurred by the Contractor and costs arising from the cancellation of third parties engaged (such as subcontracting costs).
  4. If termination is initiated by the Contractor, the Client is entitled to cooperation from the Contractor for the transfer of Work to third parties unless there is intent or deliberate recklessness on the part of the Client, forcing the Contractor to terminate. A condition for the right to cooperation under this paragraph is that the Client has settled all underlying outstanding advances or all invoices.

Article 13. Right of suspension

  1. The Contractor is authorized, after careful consideration of interests, to suspend all his obligations, including the provision of Documents or other items to the Client or third parties, until all due and payable claims against the Client have been fully satisfied.
  2. The first paragraph does not apply to the Client’s Documents that have not (yet) been processed by the Contractor.

Article 14. Expiration period

Unless otherwise provided in these general terms and conditions, the Client’s rights of action and other powers, on any basis whatsoever, against the Contractor in connection with the performance of Work by the Contractor, expire in any case one year after the moment when the Client became aware or could reasonably have become aware of the existence of these rights and powers. This term does not concern the possibility of filing a complaint with the designated body(ies) for complaint handling and/or the Disputes Committee.

Article 15. Electronic communication

  1. During the execution of the Assignment, the Client and the Contractor may communicate with each other at the Client’s request by electronic means.
  2. The Client and the Contractor are not liable to each other for any damage resulting from the use of electronic means of communication, including – but not limited to – damage resulting from non-delivery or delay in the delivery of electronic communications, interception or manipulation of electronic communications by third parties or by software/equipment used for transmission, reception, or processing of electronic communications, transmission of viruses, and the non-functioning or improper functioning of the telecommunications network or other means required for electronic communications, unless the damage results from intent or gross negligence.
  3. Both the Client and the Contractor will do or refrain from doing everything reasonably expected of each of them to prevent the occurrence of the aforementioned risks.
  4. The data extracts from the sender’s computer systems provide compelling evidence of (the content of) the electronic communications sent by the sender until proof to the contrary is provided by the recipient.

Article 16. Miscellaneous provisions

  1. If the Contractor performs Work at the Client’s location, the Client shall ensure a suitable workplace that meets the legal ARBO standards and other applicable regulations regarding working conditions. The Client must ensure that the Contractor is provided with office space and other facilities that the Contractor considers necessary or useful to execute the Agreement and that comply with all (legal) requirements. Concerning the available (computer) facilities, the Client is obliged to ensure continuity, among other things, by means of adequate backup, security, and virus control procedures. The Contractor will apply virus control procedures when using the Client’s facilities.
  2. The Client shall not employ or approach employees involved in the execution of the Work to work for the Client, directly or indirectly, whether temporarily or permanently, or to perform work directly or indirectly for the Client, whether or not in employment, during the term of the Agreement or any extension thereof and for 12 months thereafter.

Article 17. Applicable law and forum choice

  1. The Agreement is governed by Dutch law.
  2. All disputes will be settled by the competent court in the district where the Contractor is established.

Article 18. Repair clause nullities

  1. If any provision of these general terms and conditions or the underlying Assignment/Agreement is wholly or partially null and void and/or invalid and/or unenforceable as a result of any statutory provision, judicial decision, or otherwise, this will not affect the validity of all other provisions of these general terms and conditions or the underlying Assignment/Agreement.
  2. If a provision of these general terms and conditions or the underlying Assignment/Agreement is not valid for a reason referred to in the previous paragraph but would be valid if it had a more limited scope or purport, then that provision – first and foremost – will automatically apply with the most far-reaching or extensive more limited scope or purport in which it is valid.
  3. Without prejudice to the provisions of paragraph 2, the parties may consult to agree on new provisions to replace the null and void or annulled provisions. In doing so, the purpose and purport of the null and void or annulled provisions will be taken into account as much as possible.