Terms and conditions

1.       General  

1.1     In these General Terms and Conditions the following words shall have the following meaning

• Client : the party giving the assignment in writing, through electronic channels or verbally.
• Contractor : &VAN DER KLOET B.V.

 

2.       Applicability

2.1     These General Terms and Conditions shall apply to the legal relationship between Contractor and Client, subject to changes in these terms and conditions, which are to be confirmed by both parties explicitly and in writing.

2.2     The rules of conduct and professional practice of the Dutch Association of Tax Advisers are part of the agreement insofar as these are of a fiscal-legal nature. The Client hereby declares to always respect and fully comply with the obligations arising therefrom.

 

3.       Conclusion of the agreement  

3.1     The agreement is deemed to be concluded upon receipt by the Contractor of the assignment confirmation signed by the Contractor and the Client. As long as the confirmation has not yet been returned, the Contractor reserves the right to deploy its capacity elsewhere. The confirmation is based on the information provided to the Contractor by the Client at the time. The confirmation is deemed to represent the agreement correctly and fully.

3.2     The agreement is entered into for an indefinite period of time unless it arises from the contents, nature or purport of the specific assignment that it has been entered into for a definite period of time.

3.3     All services provided by the Contractor shall be carried out to the best of its knowledge and abilities in accordance with the requirements of sound workmanship.

 

4.       Provision of information by the Client  

4.1     The Client is obliged to provide all data and documents deemed by the Contractor to be necessary for correct and timely performance of the assignment in the required form and manner. 

4.2     The Client is obliged to notify the Contractor forthwith of any facts or circumstances that may be of importance in connection with the performance of the assignment.

4.3     In respect of assignments to audit financial statements the Client will inform the Contractor of all other information that is relevant for the performance or completion of the assignment.

4.4     The Client vouches for the accuracy, completeness and integrity of the data and documents made available to the Contractor, even if these originate from third parties, unless provided for otherwise by the nature of the assignment.

4.5     If and insofar as the Client requests, all original documents of an official nature that have been made available, such as notorial deeds, decrees and government permits, will be returned to the Client. Copies of these original documents will be included in the working files if such is needed in order to substantiate the quality of the activities performed.

4.6     Any additional costs and fees arising from a delay in the performance of the assignment that is the result of failure to provide the required data and documents or the late or incorrect provision thereof shall be borne by the Client. 

 

5. Performance of the assignment

5.1     Contractor shall determine how and by whom the assignment granted will be carried out, but will, wherever possible, have due regard for the requirements specified by the Client.

5.2     The Contractor cannot carry out additional activities and charge these to the Client beyond the scope of the assignment, except with the Client’s prior consent. The consent requirement shall not apply if the performance of further activities falls within the Contractor's duty of care.

5.3     The Client may involve third parties in the assignment only with the agreement of the Contractor. The provisions in the previous sentence shall apply mutatis mutandis to the Contractor.

 

6.       Confidentiality

6.1     Unless there is a legal or professional obligation of disclosure, the Contractor shall be obliged to observe confidentiality vis-à-vis third parties.

6.2     Except with the Client's consent, the Contractor shall not be entitled to use information provided to him by the Client for a purpose other than that for which it was obtained. However, an exception will be made to this if the Contractor acts for himself in disciplinary, civil or criminal proceedings in which such documents may be of importance.

6.3     Unless the Contractor has given prior written consent, the Client shall not disclose the contents of reports, advice or other expressions of opinion prepared by the Contractor, whether in writing or otherwise, unless these have been compiled or made specifically for the purpose of providing third parties with the said information. The Client shall also ensure that the information referred to in the previous sentence does not become known to third parties.

6.4     The Contractor shall impose its obligations under this clause on any third parties it engages.

 

7. Intellectual property

7.1     The Contractor reserves all rights with regard to products of the mind that are used or have been used and/or developed as part of the Client's assignment, insofar as these arise by operation of law.

7.2     The Client shall explicitly not be allowed to reproduce, publish or exploit such products, including computer programs, system designs, procedures, advice, model or other contracts or any other products of the mind of the Contractor, all this in the broadest sense of the word and irrespective of whether any third parties are engaged, unless it is explicitly intended and has been recorded in writing that such products may be reproduced, published and/or exploited. Publication is, therefore, only possible with the Contractor's consent. The Client has of course the right to reproduce the documents for use in its own organization, insofar as appropriate within the scope of the assignment. The above shall apply mutatis mutandis in the event of premature termination of the assignment.

7.3     The Client shall not be permitted to make such products available to third parties, other than for the purposes of obtaining an expert opinion on the Contractor's activities. 

 

8. Fees

8.1     In the event of any changes in salaries and/or prices after the agreement has been signed, but before it has been completed, the Contractor shall be entitled to adjust the agreed fees accordingly, unless the Client and the Contractor agree otherwise in writing.

8.2     The Contractor's fee, plus any out-of-pocket expenses and invoices of thirds parties engaged, shall be charged to the Client monthly, quarterly, annually or upon completion of the activities, unless the Client and the Contractor agreed otherwise. Turnover tax on all amounts owed by the Client to the Contractor will be charged separately. 

 

9.       Payment

9.1     Payment by the Client shall be made, without deduction, discount or setoff, within the agreed periods and in any event within fourteen days of the invoice date. Payment shall be made in Dutch currency by transfer to the bank account designate by the Contractor. Objections to the amount of an invoice submitted shall not suspend the obligation to pay.

9.2     If the Client does not pay within the period referred to above, the Contractor shall be entitled, after demanding payment from the Client at least once, without further notice of default and without prejudicing the Contractor's further rights, to charge the Client the statutory rate of interest + 4% from the due date of payment until payment is received in full.

9.3     All judicial and extra judicial costs and collection costs reasonably incurred by the Contractor as a result of the Client's failure to pay shall be for the Client’s account.

9.4     If, in the Contractor's opinion, the Client's financial position or payment record gives rise thereto, the Contractor shall be entitled to require the Client immediately to provide additional security in a form designated by the Contractor and/or to pay an advance. If the Client fails to pay the required advance or provide the required security, the Contractor shall be authorized immediately to postpone further performance of the assignment and all amounts owed by the Client to the Contractor, for whatever reason, shall become immediately due and payable.

9.5     In the event of an assignment awarded jointly, the Clients shall, insofar as the activities were carried out for the Clients jointly, be jointly and severally liable for payment of the invoice.

9.6     If the Client cancels a meeting with the Contractor less than 8 hours before the start of the meeting (calculated over only the official opening hours of the Contractor) or if the client fails to attend such a scheduled meeting, the Client agrees that the Contractor will charge the Client for half an hour of the time of each employee scheduled to attend the intended meeting.

 

10.     Complaints

10.1   Complaints with regard to the activities carried out and/or the invoice amount shall be advised to the Contractor in writing within 30 days of the date of dispatch of the documents or information about which the Client is complaining, or within 30 days from the discovery of the defect if the Client demonstrates that the defect could not reasonably have been discovered sooner.

10.2   Complaints as referred to in the first section of this clause shall not suspend the Client's obligation to pay.

10.3   If a complaint is deemed to be justifiable, the Contractor shall choose whether to adjust the fee payable, to remedy the defects free of charge, to perform the disputed activities again or not to perform or to cease performing all or part of the assignment in return for a proportionate refunding of any fees already paid by the Client.

 

11.     Delivery period

11.1   If the Client is required to make payment in advance or is required to provide information and/or materials needed for performance of the activities, the period within which the activities must be completed shall not commence until payment has been received in full, or the information and/or materials have been provided in full.

11.2   As the duration of the assignment may be influenced by all kinds of elements, such as the quality of the information provided by the Client, and the assistance granted, the periods within which the activities must be completed shall only be considered deadlines if such has been explicitly agreed.

11.3   Unless it is established that performance will be permanently impossible, the agreement cannot be dissolved by the Client on account of the period being exceeded unless the Contractor fails to carry out the agreement or fails to carry it out in full within a reasonable period, advised to the Contractor in writing, of the agreed delivery period. Dissolution shall then be permitted in accordance with Article 6:265 of the Dutch Civil Code.

 

12.     Notice of termination  

12.1   The other party must be given notice of termination in writing.

12.2   The Contractor will not reimburse the Client for any (provisional) advance payments. 

12.3   If the Client gives notice of premature termination, the Contractor shall be entitled to compensation from the Client for the plausible loss of capacity utilization unless there are facts and circumstances underlying the notice of termination that are attributable to the Contractor. If the Contractor gives notice of premature termination, the Client shall be entitled to be assisted by the Contractor in transferring activities to third parties unless there are facts and circumstances underlying the notice of termination that are attributable to the Client.

12.4   In the event of premature termination the Contractor reserves the right to invoice and be paid for activities performed up to that time. The provisional results of work carried out until such date shall be made available to the Client for approval. Any additional costs involved in transferring the activities shall be billed.

 

13.     Liability  

13.1   The Contractor will carry out its activities to the best of its ability and, in doing so, shall observe the appropriate and required duty of care. The Contractor shall not be liable for damage or loss that are the result of a mistake being made because of the Client provision of incorrect or incomplete information to the Contractor. If the Client demonstrates that it has sustained loss because of a mistake on the part of the Contractor that would have been avoided if the Contractor had applied the required degree of caution, the Contractor shall be liable up to the amount referred to in sections 2 and 3 of this clause.

13.2   The Contractor's liability shall be limited, in the event of a tax advice or legal assignment, to a maximum of three times the amount of the fee for the relevant assignment over the past calendar year that the Client has paid or still owes, with a maximum of five hundred thousand euro’s, unless intention on the part of the Contractor or equivalent gross negligence can be demonstrated.

13.3   The Contractor's liability shall be limited, in the event of an assignment to audit financial statements, to a maximum of three times the amount of the fee for the relevant assignment over the past calendar year, unless intention on the part of the Contractor or equivalent gross negligence can be demonstrated.

13.4   The Client shall indemnify the Contractor against claims from third parties for losses caused by the Client’s provision of incorrect or incomplete information to the Contractor, unless the Client demonstrates that the damage is not related to imputable acts or omissions or the result of intention or gross negligence on the part of the Contractor. This provision is not applicable to assignments to audit annual accounts as referred to in Article 2:393 of the Dutch Civil Code.

13.5   The limitation of liability specified in sections 2 and 3 of this clause also extends to third parties engaged by the Contractor for performance and who consequently may seek direct recourse to this limitation of liability.

13.6   The Contractor is not liable for any damage to or loss and theft of data and documents, as referred to in clause 4.1, provided by the Client or third parties. 

13.7   Any liability on the part of the Contractor is restricted, subject to due observance of the above limitations, to the amount covered by the Contractor's professional indemnity insurance.

 

14.     Taking over personnel  

14.1   During the execution of the assignment and within one year of its termination, the Client may not engage anyone who is or was involved on behalf of the Contractor in the execution of the assignment to work for the Client nor may the Client persuade these people to start to work for another business, which performs activities similar or related to the activities of the Contractor. 

 

15. Communication

15.1 The Client shall permit the Contractor to provide the Client or third parties designated by the Client with information of any nature whatsoever.

15.2   The information referred to above may be provided by post, e-mail, fax and/or other means of communication in the broadest sense of the word.

15.3   The Contractor and the Client accept that the provisions in this clause cannot be deemed to conflict with the provisions of clause 6.

 

16.     Expiry date

16.1   Unless specified otherwise in these General Terms and Conditions, the Client's right to take action against the Contractor on any grounds whatsoever in respect of the performance of activities by the Contractor, together with any other powers that may be available to the Client in this respect, shall in any case expire one year after the date on which the Client became or could have become aware of the existence of these rights and powers.

 

17.     Conversion  

17.1   If and insofar as it is not possible on the grounds of reasonableness and fairness or the unreasonably onerous nature to seek recourse to a provision of these General Terms and Conditions, the contents and purport of such provision shall be interpreted in such a way that, while remaining as close as possible to the original, allows recourse to be made.

 

18.     Conflicting clauses

18.1   If these General Terms and Conditions conflict in any way with the confirmation of the assignment, the terms and conditions in the confirmation shall prevail.

 

19.     Applicable law and competence  

19.1   All legal relations between the Contractor and the Client to which these General Terms and Conditions apply shall be governed by Dutch law.

19.2   All disputes relating to agreements between the Client and the Contractor and to which these Terms and Conditions apply shall be settled by the competent court in the district in which the Contractor has its place of business.

19.3   In derogation of the provisions of section 2 of this clause, the Client and the Contractor may agree to submit disputes to a dispute resolution board.
 

20.     AVG and GDPR

20.1	This GDPR Data Processing Addendum (“DPA”) applies to the processing of personal data by &VDK on Customer’s behalf under the Agreement. With regard to such processing, Customer is the controller of the personal data and &VDK is the processor of the personal data. This DPA does not apply where &VDK is the controller of personal data.
20.2	The terms “controller”, “data subject”, “personal data”, “personal data breach”, “processing”, and “processor” will have the meanings ascribed to them in the Data Protection Laws, and where the relevant Data Protection Laws use the term ‘data controller’ or ‘data processor’, they shall be read as controller and processor, respectively. “Data Protection Laws” means all data protection laws and regulations, including those of the United Kingdom (“UK”), Switzerland, European Economic Area (“EEA”) and the European Union (“Union”), applicable to the processing of personal data under the Agreement, including the Regulation 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation) (“GDPR”) from May 25, 2018.
20.3	“&VDK Products” shall for the purposes of this DPA mean the products, services, or materials supplied by &VDK to the Customer under the Agreement between &VDK and the Customer, irrespective of the name or branding of such products, services or materials.
20.4	“Licensed Users” shall for the purposes of this DPA mean the users authorized by the Agreement to use &VDK Products in accordance with the terms of the Agreement, irrespective of the definitions used in the Agreement.
20.5	“&VDK” shall for the purposes of this DPA mean &Van der Kloet B.V. or such of its Affiliates as entered into the Agreement with the Customer.
20.6	“Customer” shall for the purposes of this DPA mean the signatory to this DPA, and shall include Customer’s Affiliates to the extent that the parties to the Agreement have agreed that these are included in the Agreement.
20.7	“Affiliate” shall mean any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control”, for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
20.8	“Agreement” means the agreement between &VDK and the Customer to supply the &VDK Products irrespective of the name used in the Agreement to describe it.
20.9	Customer recognizes that, in the process of accessing and using the &VDK  Products, it and the Licensed Users will supply personal data. Customer represents and warrants that it and the Licensed Users have complied with all applicable obligations under the Data Protection Laws in supplying personal data to &VDK, including providing any required notices and obtaining any required consents and authorizations for &VDK’s processing such personal data, and that it is responsible for its decisions and actions concerning the use and other processing of the personal data.
20.10	To the extent that &VDK acts as a processor of personal data on Customer’s behalf, &VDK will process such personal data in accordance with this DPA.
20.11	Customer acknowledges and agrees that the services &VDK provides under the Agreement to provide the &VDK Products may include (i) compiling statistical and other information related to the performance, operation and use of the &VDK Products, and (ii) use data in aggregated and/or anonymized form for security and operations management or for research and development purposes or other business purposes, provided that such information and data will not identify or serve to identify Customer or any data subject.
20.12	&VDK products provide analysis and insight, and Customer alone will be responsible for any decisions it may take using insights from &VDK Product as one of several factors. Customer will therefore be responsible for compliance with any requirements under Articles 21 (Right to Object) or 22 GDPR (Automated Individual Decision Making and Profiling) in so far as they might arise as well as for responding to any requests from any data subject (subject to Clause 6 of the DPA “Data Subject Rights”).
20.13	&VDK shall not engage another processor without Customer’s prior specific or general written authorization. In the case of general written authorization, &VDK shall inform Customer of any intended changes concerning the addition or replacement of other processors, thereby giving Customer the opportunity to object to such changes in the manner more specifically set forth herein.
20.14	&VDK’s processing shall be governed by this DPA under Union or governing Member State law as set forth in the Agreement. , &VDK shall: process the personal data only on Customer’s documented instructions, including with regard to transfers of personal data to a third country or an international organization, unless required to do so by the Union or Member State law governing such personal data; in such a case, &VDK shall inform Customer of that legal requirement before processing, unless that law prohibits such information on important grounds of public interest; ensure that persons authorized to process the personal data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality; take all measures required pursuant to Article 32 (Security of Processing) of the GDPR; respect the conditions referred to in clause 4.1 and 4.3 for engaging another processor; taking into account the nature of the processing, assist Customer by appropriate technical and organizational measures, insofar as this is possible, for the fulfilment of Customer’s obligation to respond to requests for exercising the data subject’s rights laid down in Chapter III of the GDPR; assist Customer in ensuring compliance with the obligations pursuant to Articles 32 to 36 of the GDPR taking into account the nature of processing and the information available to &VDK; at Customer’s choice and/or on expiry or termination of the Agreement, delete or return to Customer all the personal data after the end of the provision of &VDK Products relating to processing and delete existing copies unless Union or Member State or other applicable law requires storage of the personal data (which, for the avoidance of doubt, does not apply to aggregated or anonymized data); make available to Customer all information necessary to demonstrate compliance with the obligations laid down in Article 28 of the GDPR and allow for and contribute to audits, including inspections, conducted by Customer or another auditor Customer mandate; immediately inform Customer if, in &VDK’s opinion, an instruction from Customer to &VDK infringes the GDPR or other Union or Member State data protection provisions.
20.15	Where &VDK engages another processor for carrying out specific processing activities on Customer’s behalf, the same data protection obligations as set out in this DPA shall be imposed on that other processor by way of a contract or other legal act under Union or Member State law, in particular providing sufficient guarantees to implement appropriate technical and organizational measures in such a manner that the processing will meet the requirements of the GDPR. Where that other processor fails to fulfil those data protection obligations, &VDK shall (subject to the terms of the Agreement) remain fully liable to Customer for the performance of that other processor's obligations.
20.16	The subject-matter of &VDK’s processing is the personal data provided related to &VDK Products under the Agreement. The duration of the processing is the duration of the provision of the &VDK Products under the Agreement. The nature and purpose of the processing is in connection with the provision of the &VDK Products under the Agreement. The types of personal data processed are as set out in the Agreement, including ancillary documents to the Agreement such as statements of work, order forms or other documents, and other types of personal data submitted to the &VDK Products. The categories of data subjects are Licensed Users, Customer’s or its Affiliates employees, representatives, clients, prospects, suppliers, business partners and others whose personal data is submitted to the &VDK Products.
20.17	The Agreement and this DPA are Customer’s complete and final documented instructions to &VDK for the processing of personal data. Additional or alternate instructions must be agreed upon separately by the parties. &VDK will ensure that its personnel engaged in the processing of personal data will process personal data only on Customer’s documented instructions, unless required to do so by Union, Member State or other applicable law.
20.18	Customer hereby provides &VDK general consent to engage other processors for the processing of personal data in accordance with this DPA. &VDK shall maintain a list of such processors which &VDK may update from time to time. &VDK shall make it available on www.vanderkloet.nl. At least 14 days before authorizing any new such processor to process personal data, &VDK shall  update the list on &VDK’s website and provide Customer with a mechanism to obtain notice of that update.
20.19	Customer may object to the change without penalty by notifying &VDK within 14 days after receipt of &VDK’s notice. &VDK shall use reasonable endeavor’s to change, modify or remove the affected &VDK Products or Licensed Materials to avoid processing of personal data by such new processor to which Customer reasonably object.
20.20	&VDK shall notify the Customer in the event that it is unable to continue to provide the &VDK Product to Customer without changing the sub-processors as anticipated and whether this affects all &VDK Products under the Agreement or only a subset of them. Without prejudice to termination and refund provisions in the Agreement, for a period of ninety (90) days of this notice, either party may terminate the Agreement by notice to the other with respect to the affected &VDK Products, and then &VDK will pay Customer a pro rata refund of any prepaid fees for the remainder of the term of the Agreement related to the affected &VDK Products.
20.21	&VDK shall, to the extent legally permitted, promptly notify Customer of any data subject requests &VDK receive and reasonably cooperate with Customer to fulfil Customer’s obligations under the GDPR in relation to such requests. Customer shall be responsible for any reasonable costs arising from VDK’s providing assistance to Customer to fulfil such obligations.
20.22	&VDK shall ensure that, to the extent that any personal data originating from the UK, Switzerland or EEA is transferred by &VDK to another processor in a country or territory outside the UK, Switzerland or EEA that has not received a binding adequacy decision by the European Commission or competent national data protection authority, such transfer shall be subject to an appropriate transfer mechanism that provides an adequate level of protection in accordance with the GDPR.
20.23	Taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of processing as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons, the parties shall implement appropriate technical and organizational measures to ensure a level of security appropriate to the risk, including inter alia as appropriate: the pseudonymization and encryption of personal data; the ability to ensure the ongoing confidentiality, integrity, availability and resilience of processing systems and services; the ability to restore the availability and access to personal data in a timely manner in the event of a physical or technical incident; and a process for regularly testing, assessing and evaluating the effectiveness of technical and organizational measures for ensuring the security of the processing.
20.24	In assessing the appropriate level of security, account shall be taken in particular of the risks that are presented by processing, in particular from accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to personal data transmitted, stored or otherwise processed.
20.25	The parties shall take steps to ensure that any natural person acting under the authority of either party who has access to personal data does not process them except on instructions from Customer, unless he or she is required to do so by Union or Member State law.
20.26	&VDK shall notify Customer without undue delay after becoming aware of a personal data breach and shall reasonably respond to Customer’s requests for further information to assist Customer in fulfilling Customer’s obligations under Articles 33 and 34 of the GDPR.
20.27	&VDK shall maintain all records required by Article 30(2) of the GDPR and, to the extent applicable to the processing of personal data on Customer’s  behalf, make them available to Customer as required.
20.28	Audits shall be: Limited to &VDK’s processing of personal data under the Agreement and compliance with this DPA only; Conducted by an independent third party reputable auditor; Subject to the execution of appropriate confidentiality undertakings; Conducted no more than once per year, unless a demonstrated reasonable belief of non-compliance with the Agreement has been made, upon thirty (30) days written notice and having provided a plan for such review; and Conducted at a mutually agreed upon time and in an agreed upon manner.
20.29	If          there is any conflict or inconsistency between the terms of this DPA and           the Agreement, the terms of this DPA shall control to the extent required by law. Otherwise, the Agreement shall control in the case of such conflict or inconsistency.