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General Terms and Conditions Legal Services

General Terms and Conditions Legal Services

1               GENERAL

In these General Terms and Conditions, the following terms are defined as stated below: Client: the party that issues the order;

Contractor: Gravendeel Advocaten B.V. registered with the Chamber of Commerce under number 32099990; Oude Enghweg 2, 121 & JC Hilversum.

 

2               APPLICABILITY

2.1 These General Terms and Conditions apply to all services provided by the Contractor to the Client, except to the extent that the content of these General Terms and Conditions is derogated from in the Assignment Confirmation.

2.2 The Client accepts that the Contractor, in the performance of the assignment, is obliged to comply with the Counsel Act, Rules of Professional Conduct and Practice (to be consulted on wetten.nl or advocatenorde.nl.) or foreign equivalents thereof, applicable to the Contractor, and accepts that disputes between the Client and the Contractor are settled through arbitration by the Disputes Committee for the Legal Profession. The relevant arbitration rules are included at the end of this document.  The Client declares to be aware that the Contractor is insured against professional liability for the performance of the Agreement for Services under the policy conditions applicable from the date of acceptance of the assignment.

 

3.             CONCLUSION OF THE AGREEMENT

3.1 The Agreement consists of these General Terms and Conditions and the Assignment Confirmation by the Contractor and is concluded once the Assignment Confirmation signed by the Contractor and Client has been received; an email to that end from the Client to the Contractor or acceptance of the first actual performance of the assignment (e.g. acceptance of a (draft) letter to be sent or payment of the assignment by the Client shall have the same effect.  As long as the confirmation has not been returned, the Contractor reserves the right to use its capacity elsewhere.  The confirmation is based on the information provided by the Client to the Contractor at the time.  The Assignment Confirmation is deemed to be a complete and accurate representation of the Agreement and shall also include the steps to be taken or omitted agreed upon in consultation.  The Agreement shall also include a follow-up assignment in the same or another case, unless otherwise agreed by the parties.

3.2 If the assignment or a follow-up assignment has been issued orally or electronically (SMS, email, etc.) without written Assignment Confirmation, the Agreement or follow-up assignment will also be concluded once the Contractor has accepted the assignment or the Contractor has confirmed it will perform the assignment.

3.3 The Agreement supersedes and replaces all previous proposals, correspondence, arrangements or other communication, whether orally or by email.

3.4 The agreement is entered into for a fixed period of time - the duration of the accepted assignment - unless it ensues from the content, nature or scope of the assignment that it has been entered into for an indefinite period.  The liability of the Contractor for the assignment will expire following one year after termination of the assignment. These General Terms and Conditions also apply to follow-up assignments in the same case or new assignments.  In both cases, an assignment confirmation from the Contractor to the Client shall suffice.  The Client acknowledges the existence and the content and applicability of these General Terms and Conditions also due to their inclusion in electronic communications such as email communication and/or on the website of the Contractor and the Chamber of Commerce where the Contractor is registered.

3.5 Termination of the Agreement is effected by communication thereof by the Contractor or Client to the other party.  Such termination is also effected by the fact that the formal handling of the file is taken over by the Client or a lawyer outside of the Contractor's office or by another person who communicates this to the Contractor on behalf of the Client. Any liability of the Contractor for further handling of the assignment expires where the Client performs this or has it performed by a third party, from the date of the case transfer.

 

4.              COOPERATION BY THE CLIENT

4.1 The Client is obligated to properly and timely provide all information and documents, which the Contractor, in its opinion, requires for the proper performance of the assignment granted, and in the preferred format and manner.

4.2 The Client shall undertake to inform the Contractor with immediate effect regarding facts and circumstances that may be relevant in connection with the performance of the assignment.

4.3 The Client guarantees the correctness, completeness and reliability of the information and documents provided to the Contractor, even if they originate with, or have been acquired from, third parties, insofar as the nature of the assignment does not provide otherwise. Any additional costs resulting from the delay in the performance of the assignment caused by not, not timely or insufficiently making available of the required information, documents, facilities and/or personnel shall be for the account and risk of the Client.

 

5               PERFORMANCE OF THE ASSIGNMENT

5.1 All work performed by the Contractor shall be executed to the best of its abilities, according to the demands of good craftsmanship.

5.2 All work performed by the Contractor shall be executed to the best of its abilities, according to the demands of good craftsmanship.

5.3 The Contractor determines the manner in which and by which employee(s) the assignment is performed and discusses the approach, while respecting the requirements or limitations communicated by the Client, to the extent possible. In the event that employee(s) are identified by name in the Assignment Confirmation, all reasonable efforts shall be made to ensure that the employee(s) concerned is/are available for the performance of the work.  The Contractor agrees that work may also be carried out by a lawyer associate to be appointed (thus Article 404, Book 7 of the Dutch Civil Code does not apply). Also, Article 407 paragraph 2, Book 7 of the Dutch Civil Code is excluded, namely the joint and several liability for the entire damage due to a shortcoming if two or more persons have accepted the assignment.

5.4 The Contractor shall only perform more work than provided for in the Contract and charge this to the Client, after prior consent by the Client, without prejudice to the above article 3 (aspects of conclusion of contract).  Such consent is not required if the work falls within the
scope of the Contractor's duty of care (e.g. urgency, replacement in case of absence or inaccessibility).

 

6               CONFIDENTIALITY

6.1 Unless there is a statutory or professional duty to disclose, the Contractor or employee(s) engaged by the Contractor shall be required to observe secrecy towards third parties.

6.2 Subject to the consent of the Client, the Contractor shall not be entitled to use the information it has been provided with by the Client for a purpose other than for which it was obtained.

6.3 Unless the Contractor has given prior written consent, the Client shall not disclose the content of any reports, recommendations or any other communications of the Contractor whether in written form or otherwise, which were not drawn up or made with the aim of providing third parties with the information recorded therein.

6.4          The Contractor shall impose the obligations stipulated in this article on all third parties engaged for this purpose.   

 

7               INTELLECTUAL PROPERTY

7.1 The Contractor reserves all rights regarding products of the mind which it uses or has used and/or develops in the context of the performance of the assignment of the Client, insofar as these arise from the law or have been licensed. All other intellectual property rights, which are already owned by the Contractor before the date of this Agreement (or had been licensed to the Contractor) shall remain with the Contractor (or Licensor).

7.2 The Client is explicitly forbidden from reproducing, publishing or exploiting the products, including computer programs, system designs, processes, recommendations, contracts, model contracts and other products of the mind in the
broadest sense, whether the Client does so with the involvement of third parties or otherwise, unless these products are expressly intended for reproduction, publication and/or exploitation and this has been recorded in writing.  Publication may therefore occur only after consent has been obtained from the Contractor.

7.3 Obviously, the Client has the right to reproduce the written documents for use within its own organisation, as and when appropriate within the purpose of the assignment, without prejudice to the intellectual property rights of third parties that may be involved. In the event of interim termination of the assignment, the foregoing shall apply by analogy.

 

8               FEE

8.1 The fee is calculated on the basis of the number of hours worked, multiplied by the hourly rates to be determined annually by the Contractor, unless explicitly agreed otherwise and subject to the usual rates for specific notarial or legal transactions. Advances paid to the Client are charged.  To cover general office costs, including postage, telephone, fax and photocopying expenses, a percentage equal to 6% of the fee will be charged.  The fee statement shall be itemized, or it will be forwarded upon request, specifying the work carried out per six minutes or a multiple thereof; e.g. telephone, email in, study.

8.2 If, following the conclusion of the Agreement, yet before the assignment is performed, wages and/or rates have changed, the Contractor shall be entitled to adjust the agreed rate accordingly, unless the Client and the Contractor have made other arrangements.

8.3 The Contractor’s fee, increased by additional expenses referred to in the first paragraph of this article and as necessary by expenses and claims of third parties engaged, will be charged to the Client on a monthly basis, unless the Client and Contractor have made other arrangements. Turnover tax is charged separately for all amounts owed by the Client to the Contractor.

 

9               PAYMENT

9.1 Payment by the Client shall be effected without any deduction, discount or set-off, within the agreed terms - in case of advance payment invoices within 3 days, but for other invoices no later than 10 days after the invoice date. Payment shall be made in Euros by means of a transfer in favour of a bank account to be specified by the Contractor. Objections to the amount of the submitted invoices shall not suspend the payment obligation. The Client gives prior consent to set off payments against money received in the third party account in respect of that case.  The Contractor shall report this to the Client by letter/email/SMS or on the invoice.

9.2 If the Client has not paid within the term referred to in paragraph 9.1, the Contractor will be entitled, after giving notice to the Client at least once, without further notice of default being required and without prejudice to the other rights of the Contractor, to charge the statutory interest from the due date until the date of full payment.

9.3 All reasonable judicial and extrajudicial (collection) costs incurred by the Contractor as a result of the Client's failure to fulfil its payment obligations will be borne by the Client and amount to € 275 in case of a demand. In case of proceedings, € 450 to be added with applicable court fees, bailiff fees and seizure costs, commercial interest (Article 119a or 119, Book 6 of the Dutch Civil Code).

9.4 If the financial situation and/or the payment practices of the Client so warrant in the opinion of the Contractor, the Contractor is entitled to require the Client to provide immediate (additional) security in a form to be determined by the Contractor and/or an advance payment. If the Client fails to furnish said security, the Contractor is entitled, notwithstanding its other rights, to suspend the performance of the assignment with immediate effect at the risk of the Client and all amounts owed by the Client to the Contractor for any reason shall be immediately due and payable.

9.5 In the event of an assignment issued collectively, the Clients are jointly and severally liable for the payment of the invoice amount, to the extent that the work has been performed for the collective Clients. Such payments cannot be recovered due to objections raised by one of the Clients, of whatever nature.

9.6 If the euro expires as a currency, the value of the invoice drawn up in euros is considered to be in the ratio of one euro equalling one Swiss franc and twenty cents (as at 14 January 2015, hereinafter referred to as the "Value") so that the Contractor may demand further payment from the Client in euros or US$ to ensure payment of the outstanding invoice in accordance with the Value.

 

10             COMPLAINTS

10.1 Complaints regarding the performance of work and/or the invoice amount must be communicated to the Contractor in writing within 30 days after the posting date of the documents or information that is the subject of the Client’s claim, or within 30 days from the day the defect was discovered if the Client can demonstrate that he could not have reasonably detected the defect any sooner.

10.2 Complaints as indicated in the first paragraph will not suspend the Client’s payment obligation.

 

11             DELIVERY PERIOD

11.1 If the Client owes an advance payment or must provide information required for the performance of the work, the period in which the work must be completed will not be earlier than the time that payment is received in full or the information has been made fully available, respectively.

11.2 Since the duration of the assignment is subject to many factors, such as the quality of the information provided by the Client and the cooperation extended, the due dates for completion of the assignment should be regarded as deadlines only when this has been expressly agreed in writing.

11.3 Unless performance is impossible on a permanent basis, the Agreement may not be dissolved by the Client due to the period having been exceeded, unless the Contractor also fails to perform its contractual obligations, fully or in part, within a reasonable period notified to it in writing upon the lapse of the original deadline. In that case, dissolution is permitted in accordance with Article 265, Book 6 of the Dutch Civil Code.

 

12             LIABILITY

12.1 The Contractor will perform its work to the best of its ability and, in doing so, will observe the level of due care that may be expected from it.  In the event that an error is made because the Client provided the Contractor with incorrect or incomplete information, the Contractor cannot be held liable for any resulting damage.

12.2 If the Client demonstrates that it suffered damage through an error on the part of the Contractor that could have been avoided if due care had been observed, the Contractor may be held liable for such damage up to no more than three times the fee to be paid to the Contractor by the Client for the relevant assignment, or part thereof, in the relevant year, provided that if it were less than € 500,000, in that case the maximum liability is the then applicable maximum amount stated in the mandatory professional liability policy, unless there is deliberate intent or contributory fault on par with gross negligence on the part of the Contractor.

12.3 The Client shall indemnify the Contractor against third-party claims for compensation for damage resulting from providing incorrect or incomplete information to the Contractor, unless the Client demonstrates that the damage does not relate to any imputable acts or omissions on its part or is caused by intentional act or omission or causes on par with gross negligence on the part of the Contractor.

12.4 The Contractor is solely liable in respect of shortcomings on the part of a third party or third parties it has engaged, if and insofar as the resulting damage can be recovered from said third party or parties.  The Contractor is authorised to accept, on behalf of the Client, any limitations of a third party or third parties it has engaged, effective in respect of the Client.

12.5 The Contractor shall only be liable for so-called corporate liability, irrespective of the nature or the form of the claim for damages, for a maximum amount of € 250,000, or at least the then applicable amount stated in the mandatory corporate liability policy, unless it concerns intentional act or omission on par with gross negligence on the part of the Contractor.

12.6 To the extent that policy or strategic advice is provided by the Contractor to the Client, this shall not imply, in the execution thereof, the Contractor's guarantee to the Client in terms of their feasibility, such as a result in a judgement or negotiation with third parties. The nature of such advice or the consequences of the execution of such advice shall be unenforceable against the Contractor insofar as it does not result in or continue to result in the intended objectives or lead to damage or costs suffered by the Client.

12.7 The Client declares to be aware that the fines collected from third parties or other parties by the Contractor, on behalf of the Client (for example, by virtue of a judgement or ex parte order, pursuant to Article 1019e, Dutch Code of Civil Procedure), may be recovered by said third parties or other parties from the Client, e.g. because of a (subsequent) judgement of any (arbitration) court.  Thus, this also applies to fines collected.  Contractor excludes all liability towards the Client in this respect and the Client shall indemnify the Contractor against all claims for liability by third parties or other parties in respect of this.

12.8 For all damages to be compensated by the Contractor to the Client, the Client shall nevertheless bear an excess of ten thousand euros excluding VAT.

12.9 Any claim for compensation against employees, persons with whom a cooperation agreement has been entered into or directors of the professional corporations through which certain partners perform their services, including employees in private homes, is excluded. The above-mentioned employees, persons with whom a cooperation agreement has been entered into and directors may at all times invoke this third-party clause agreed upon for their own benefit.

12.10 Not only the Contractor, but also all the persons - both those affiliated in any way with the Contractor and third parties - engaged in the performance of any assignment of a Client may rely on these General Terms and Conditions. Insofar as the Client has privately addressed the Contractor as a lawyer because of a professional error relating to an unlawful act, this shall concern his liability as a professional practitioner and not his liability as a director of a professional corporation and the lawyer may also privately rely on these General Terms and Conditions. However, such personal liability is capped at 5 percent of the maximum amount referred to in article 12.2  and is only possible insofar as there is serious fault or gross negligence on the part of the lawyer - thus significantly more fault than in case of a wrongful act as a reasonably acting and reasonably skilled professional - and only insofar as professional liability or corporate liability insurance proves to provide no or insufficient entitlement to financial compensation, after having been taken to court, following an irrevocable ruling. The Money Laundering and Terrorist Financing Prevention Act is applicable.

 

13             LIMITATION, PRESCRIPTION

13.1 Insofar as not provided for otherwise in these General Terms and Conditions, rights to action and other powers of the Client by any virtue whatsoever towards the Contractor in respect of work to be performed by the Contractor, shall in any case expire three months after the moment the Contractor became aware or could in reason have become aware of the existence of said rights and powers, but in any event not later than one year after termination of the Agreement. One year after the last time the file was handled by the Contractor on behalf of the Client in connection with the particular case.

13.2 The limitation period of any right to action of the Client towards Contractor (article 306, 307, 309 through 414, Book 3 of the Dutch Civil Code) will expire one year after termination of the Agreement within the meaning of Article 3.5, at least in fact, after the last file handling.

 

14            RELINQUISHMENT OF RIGHTS

The failure to directly enforce any provision or condition of this Agreement by the Client shall not affect or restrict the rights and powers of the Contractor under this Agreement.  Client hereby agrees, in advance, to waive the right of any provision or condition of this Agreement or the law, including in respect of limitation, applicable for the period after the expiry of the limitation period.

 

15             CONVERSION

If and to the extent any provision of these General Terms and Conditions cannot be relied upon on the basis of reasonableness or fairness or because of its onerous character, said provision shall in any event be accorded a meaning corresponding as closely as possible to its original purport and tenor so that this provision can nevertheless be invoked.

 

16             CONTINUED EFFECT

The provisions of this Agreement, which are intended, either expressly or tacitly, to remain in effect even after termination of the Agreement, shall have continued effect after the Agreement has been terminated and shall continue to bind the parties.

 

17             CONTRADICTORY CLAUSES

If these General Terms and Conditions and the Assignment Confirmation contain contradictory conditions, the conditions of the Assignment Confirmation shall prevail.

 

18             RECRUITMENT BAN

During the execution of the assignment and within one year of termination of the assignment, neither party shall employ persons who are or were involved
in executing the assignment on behalf of the other party or conduct negotiations with such persons about employment, other than in consultation
with the other party.

 

19             APPLICABLE LAW, JURISDICTION

19.1 All Agreements between the Client and the Contractor to which these General Terms and Conditions apply, shall be governed by the laws of the Netherlands.

19.2 (i) Any disputes related to agreements between the Client and the Contractor to which these General Terms and Conditions apply, shall in the first instance be settled by the Disputes Committee for the Legal Profession referred to in the Complaints and Dispute Settlement Scheme for the Legal Profession, such as a disputed invoice.  (ii) This does not apply to undisputed invoices, in respect of which the court in Amsterdam is competent. A complaint about the compliance with rules of professional conduct for lawyers, such as the 1992 Code of Conduct or applicable successors thereof, can be submitted to the Dean of the district where the lawyer practises unless the Dean refers the Client to the designated court where that objection of said article 19.2 (i) or -(ii) is heard.

19.3 If you wish to request any information relating to the Agreement, the assignment or follow-up assignments, please send an email  to Gravendeel@Gravendeel Advocaten.nl or a fax to (00 31)(0)35-7200.958 or by post to the current office address.

 

20             FILING

A file is kept as a physical or electronic file for at least seven years, counted from the last handling thereof, after which the Contractor shall be free to destroy the file.  The Contractor shall send the originals of official documents to the Contractor (e.g. statements, registration certificates).

 

21             PUBLICITY

If a case for a Client is published outside the control of the Contractor, the Contractor shall be free to announce its involvement in that case, and to further disseminate previously disclosed information.   The Contractor shall be obliged to maintain confidentiality in respect of all other knowledge of its Client.

 

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ANNEX: Regulations of the Disputes Committee for the Legal Profession

SECTION 1: GENERAL PROVISIONS

Article 1 - Definitions

In these regulations, the following terms are defined as stated below:

SGC: the Dutch Foundation for Consumer Complaints Boards;

SGB: the Dutch Foundation for Profession and Business Complaints Boards;

Committee: the Disputes Committee for the Legal Profession, established and maintained by the SGC and the SGC in accordance with their articles of association;

Office Complaints Procedure: the procedure communicated in writing to the client, which applies at the office of the lawyer in respect of handling complaints of clients;

Dispute Settlement Scheme for the Legal Profession: these regulations;

Lawyer: the lawyer, including the legal entity where he exercises his profession and the office he is affiliated with, to whose operations the Dispute Settlement Scheme for the Legal Profession applies;

the Association: the Dutch Bar Association

client: the purchaser of the services of a lawyer;

consumer: the client, natural person not acting in the exercise of a profession or business.

 

Article 2 - Applicability

1. The Dispute Settlement Scheme for the Legal Profession shall apply if the parties have referred to it by written agreement and the

dispute concerns a. the formation and/or performance of an assignment issued to the lawyer; b. a claim for compensation for damage that, assessed at the time of filing, does not exceed or will not exceed the amount of € 10,000 (including any VAT due) or explicitly limited to that amount, where the excess is waived in writing; c. the height and/or the collection of one or more invoices sent to the client by the lawyer.  If, as provided in paragraph 2, the Committee decides by a binding opinion it is not competent to rule on claims for payment of interest.

2. If the client is a consumer, the Committee shall, without prejudice to the provisions of article 12, paragraph 2, decide by way of a binding opinion.  In all other cases, the dispute shall be settled by arbitration.  In case of a binding opinion, section 2 applies, in case of arbitration section 3 applies.

3. The provisions in this section and in section 4 shall apply both in case of applicability of section 2 and in the case of applicability of section 3.

 

Article 3 - Composition of the Committee

1. The Committee consists of:  (i) one or more Chairs who make up the judiciary  charged with the administration of justice (ii) one or more members nominated by the Consumers' Association (iii) one or several representatives of the business sector (iv) one or several lawyers nominated as members by the association.

Appointment of the members referred to under (i) and (iv) is effected by the SGC and the SGB jointly, appointment of the members referred to under (ii) is effected by the SGC and appointment of the members referred to under (iii) is effected by the SGB.

2. A (deputy) secretary is added to the Committee, who is a qualified lawyer (LL. M.).

The Secretariat of the Committee is provided by the SBC in case of a binding opinion and by the SGB in case of arbitration.

3. The Secretary shall consult with the Chair or one of the Chairs to determine which members of the Committee are responsible for handling a dispute, with the proviso that the following persons shall take part in that:

in case of a binding opinion: a Chair, a member as referred to under 1 (ii) and a member as referred to under 1 (iv) of this article; In case of arbitration: a Chair, a member as referred to under 1 (iii) and a member as referred to under 1 (iv) of this article.

4. Arbitration disputes within the meaning of article 2.1 under c, in which no written defence is heard, may be dealt with by the Chair.

 

Article 4 - Task of the Committee

The task of the Committee is to resolve disputes between the client and the lawyer, insofar as they relate to the formation or performance of an assignment given to the lawyer by the client. It promotes a settlement between the parties.

 

Article 5 - Challenge and exemption

1. A member of the Committee may be challenged at the request of either party on the basis of facts or circumstances that could make it difficult for the member to form an impartial opinion about the dispute.  Such a request has to be made no later than at the hearing where the dispute is heard.

2. The other Committee members will decide whether the
challenge is well-founded. If the event of a tied vote, this is considered to be case.

3. On the basis of facts or circumstances referred to in the first paragraph, a Committee member may claim exemption from handling a dispute.  He is obliged to do so if the other two members of the Committee who will participate in the handling of the case are of the opinion that the acts or circumstances pertain to said member.

4. In the event of a challenge or exemption, the member in question is replaced by another member of the Committee.

5. The decision referred to in the second paragraph shall be communicated to the parties.

 

Article 6 - Confidentiality

The members of the Committee and the (deputy) secretary are obliged to maintain complete confidentiality with regard to all the parties in respect of data they have taken cognisance of in handling the dispute.

 

Article 7 - Admissibility

1. At the request of the lawyer - provided done at the earliest opportunity - the Committee shall declare the complaint of the client inadmissible

a. if he has failed to first submit his complaint with the lawyer in accordance with the office complaints procedure within three months from the moment the client became aware or could reasonably have been aware of  the act or omission giving rise to the complaint;

b. if, following submission of the complaint within the meaning of a., four weeks have not yet passed or if in respect of this complaint a satisfactory arrangement has been agreed between the lawyer and the client, within this period, which has been confirmed in writing to the client by the lawyer;

c. if following written handling of the complaint within the meaning of a., more than twelve months have passed.

2. By way of derogation from the provisions in the first paragraph, preamble and under a., the Committee may still decide to handle the dispute, if in the opinion of the Committee, the client cannot reasonably be blamed for non-compliance with the conditions.

 

Article 8 - Assistance or representation

Parties have the right to be assisted or represented by a third party.

 

SECTION 2: BINDING OPINION

Article 9 - Institute proceedings

1. Without prejudice to the provisions of articles 2 and 7, a dispute may be brought before the court by a written notice to the Committee.

2. The notice referred to in paragraph 1 shall contain the names, addresses and any telephone and fax numbers of both parties, as well as a brief description of the dispute and the claim.

3. The Committee shall forward the consumer, both when the consumer has brought the dispute before the court and when he is the defendant, a questionnaire the consumer is to return to the Committee, completed and signed.

 

Article 10 - Complaint-filing fee

1. The person submitting the dispute shall be due a fixed complaint-filing fee, to be determined by the SGC.

2. The amount referred to in paragraph 1 shall not be reimbursed by the SGC.

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