GENERAL TERMS AND CONDITIONS Andringa Calje & De Jager Advocaten B.V. te Rotterdam
Article 1 – Andringa Caljé & De Jager Advocaten B.V.
1.1 (“ACJ”), established in Rotterdam, is a limited liability company the object of which is to exercise the legal profession.
1.2 The stipulations in these general terms and conditions have been laid down not just on behalf of ACJ but also on behalf of its Partners (including the directors of the legal entity partnerships with limited liability), as well as all other individuals employed by ACJ or who were employed by ACJ when the activities were performed, as well as any individuals engaged by ACJ for the performance of any assignment for whose acts or omissions ACJ could be held liable by law (“stipulation on behalf of third parties”).
Article 2 – The agreement
2.1 These general terms and conditions apply to all contracts for professional services made between the client and ACJ (including supplementary instructions and follow-up instructions), as well as to the phase preceding the conclusion of a contract for professional services.
2.2 A contract for professional services is reached between the client and ACJ as such and therefore not with Partners and/or persons employed by ACJ. This also applies if it was the client’s express or tacit intention for the assignment to be performed by a particular individual. The operation of Section 7:404 of the Dutch Civil Code, which lays down regulations in respect of the latter case, and of Section 7:407 (2) of the Dutch Civil Code, which establishes joint and several liability in respect of cases in which an assignment is given to two or more individuals, is expressly excluded.
2.3 After consultation with the client, ACJ decides which of its Partners and/or employees is to undertake the assignment under the responsibility of the organisation. In the event of the absence or unavailability of particular Partners or employees, ACJ is at liberty to place the assignment with another Partners or Partners or employee(s).
2.4 The agreement contains an obligation of effort for ACJ and not an obligation of result.
2.5 ACJ will notify the client in writing when the file is closed. The file will be stored in an adequate filling space (archive) for a period of 5 years. If our files will be digitalized in the future, a datacentre is also defined as being an archive to store the digital files.
Article 3 – Liability
3.1 If the performance of an assignment on behalf of a client results in a claim for liability, such liability will then be limited to the amount or amounts for which the professional liability insurance taken out by ACJ provides coverage, including the deductible which ACJ carries in connection with such insurance.
3.2 The contents and conditions of the professional liability insurance taken out by ACJ go beyond the relevant requirements laid down by the Netherlands Bar Association.
3.3 If and insofar, for whatever reason, no payment takes place under the professional liability insurance taken out by ACJ, any and all liability of ACJ shall be limited to an amount of € 20.000 or, if the fees charged by ACJ in the matter concerned are higher, limited to the amount of such fees up to a maximum of € 40.000.
3.4 Liability for indirect loss or consequential loss is excluded in all circumstances.
3.5 Claims in connection with liability on the part of ACJ must be submitted as quickly as possible in writing, stating reasons, twelve months after the facts on which the claim is based, are known to the client or should have been reasonably known to the client.
3.6 The performance of a contract for professional services takes place solely on behalf of the client. Third parties are unable to exercise any rights in respect of the substance of the contract or the activities performed, even if they may be deemed to have a direct or indirect interest in the outcome of the activities. ACJ is not liable towards third parties for activities performed on behalf of a client.
Article 4 – Engagement of third parties
4.1 The choice of third parties to be engaged by ACJ (including but not confined to other lawyers and bailiffs) will, where possible and reasonably required, take place after consultation with the client and be subject to such care as might reasonably be expected of ACJ. ACJ does not accept any responsibility for the way in which the third parties engaged by it, perform their activities and is not liable for any shortcomings on the part of those third parties, except in the case of deliberate intent or gross negligence on the part of ACJ.
4.2 If those third parties wish to limit their liability in connection with the performance of an assignment on behalf of the client of ACJ, the latter is authorised to accept such a stipulation without prior consultation with the client.
Article 5 – Wwft
5.1 On the basis of the Wwft Act (the Act on the prevention of the use of financial systems for the purpose of money laundering and terrorist financing) ACJ is obliged to notify the Financial Intelligence Unit-Netherlands of any unusual transactions within the meaning of the Act.
5.2 Under the Wwft Act, ACJ is not authorised to commence activities until completion of the identification procedure described in the Wwft Act.
5.3 Except in the case of deliberate intent or gross negligence on its part, ACJ shall in no circumstances be liable for any past, present or future loss sustained by a client in connection with an incorrect disclosure made under the Wwft Act. 5.4 Except in the case of deliberate intent or gross negligence on its part, ACJ shall in no circumstances be liable for any past, present or future loss sustained by a client in connection with the fact that ACJ was unable to complete the identification procedure within the meaning of Wwft Act.
Article 6 – Indemnification by client against third-party claims
6.1 The client shall hold ACJ and all individuals referred to in Article 1.2 harmless in respect of any claims by third parties alleging that they have suffered loss as a result of or in connection with the activities performed by ACJ on behalf of the client.
6.2 The client holds ACJ and all individuals referred to in Article 1.2 harmless in respect of any claims by third parties alleging they have suffered loss as a result of or in connection with an incorrect disclosure made under the Disclosure of Unusual Transactions (Financial Services) Act (the MOT Act), except in the case of deliberate intent or gross negligence on the part of ACJ.
Article 7 – Charges and payment
7.1 ACJ has the right periodically (on 1 January of each year) to amend its hourly rates and the allowance it pays for travel by car or public transport. The client will be advised as quickly as possible of any change in the hourly rates and/or travelling allowance.
7.2 If the change as referred to in the previous paragraph represents an increase of 15% or more or if an increase takes place within two (2) months after the conclusion of the contract between the client and ACJ, the client has the right to terminate the agreement by means of registered letter. The right to dissolve the agreement lapses on the 15th day after the notification in writing of such increase.
7.3 The fee in respect of the activities performed by ACJ will be determined on the basis of the number of hours worked multiplied by the hourly rates charged by ACJ. In addition the client will be charged a fixed mark-up for office expenses of 5% of the fee, value added tax (where applicable) and any advances (such as Court Registry charges and bailiff’s expenses). The fee and other costs will in principle be invoiced monthly in respect of the immediately preceding month, accompanied by a detailed breakdown of the charges.
7.4 Before commencing the activities in relation to the contract, ACJ is authorised to demand payment of an advance. The advance will be offset against the final invoice submitted to the client in respect of the case in question.
7.5 Payment of the invoices submitted by ACJ must be made within 15 days of invoice date without any discounts, suspension or set-off. Objections on the part of the client should be advised in writing to ACJ as quickly as possible, stating reasons, but no later than within 15 days of the invoice date, together with payment of the uncontested element of the invoice.
7.6 ACJ is at any event authorised to suspend the activities which it has been assigned if invoices older than 60 days have not been paid, the credit risk on the client is considered too high or the continuity of a client’s commercial operations is not sufficiently assured. Any suspension of activities by ACJ will be advised to the client in writing.
7.7 Except in the case of a written objection within the meaning of Article 7.5, the client hereby grants ACJ as well as the Stichting Derdengelden Advocatuur (Third Party Monies Account) express and irrevocable consent to use any monies received for or from the client to offset or make payment towards any amounts owed by the client to ACJ.
7.8 In the event of invoices that have remained unpaid for 90 days from invoice date. ACJ is authorized to charge extrajudicial collection costs in conformity with the fixed fee-schedule as set out in the Act on Standardization of Extrajudicial Collection Costs (“Wet Normering Buitengerechtelijke Incassokosten”) and the Order on Compensation for Extrajudicial Collection Costs (“Besluit Vergoeding voor Buitengerechtelijke Incassokosten”) with a minimum charge of € 40,–. All extrajudicial and legal costs relating to the collection of amounts invoiced to the client by ACJ shall be for the client’s account. The legal costs are not confined to the costs of litigation to be liquidated but will be charged in full to the client if the latter is (predominantly) found to be at fault.
Article 8 – Funded / subsidized legal aid
8.1 ACJ is entitled to request a payment in advance (a retainer) from the client until the subsidized legal aid is approved and paid by the Council of Legal Aid. The amount of the advanced payment will be determined in consultation between the lawyer and the client in question.
8.2 Court fees or fixed charges of witnesses and experts, extracts from the public records, telegrams, international telex, international fax and international telephone calls and correspondence with the Court Administration do not fall within the scope of the compensation paid by ‘Council of Legal Aid’ and will be charged to the client.
Article 9 – Complaints
9.1 Any complaint by a client concerning the activities performed must be submitted in writing to ACJ for the attention of the management. After studying the complaint and the file the management of ACJ will consult the client as quickly as possible in order to determine how the complaint can be resolved.
9.2 Where ACJ is held liable by a client in respect of activities that have been performed, notification must be made to ACJ for the attention of the management. ACJ will pass such claim for liability on to its professional indemnity insurer.
9.3 In the event of disciplinary complaints by a client in respect of activities performed by ACJ, the latter will if necessary advise the client of the relevant complaints procedures of the Bar Association. Article 10 – Intellectual property.
10.1 The client is not permitted, without prior written consent, to disclose and or exploit; advices, contracts or other products of the mind (intellectual property) manufactured by or on behalf of ACJ , whether or not with the purpose to reproduce, either with or without the involvement of third parties.
Article 11 – Miscellaneous topics
11.1 Any agreements between the client and ACJ will be subject to Dutch law. The court in the district in which ACJ is established will have sole jurisdiction in respect of any disputes. ACJ is nonetheless entitled to submit any disputes to the competent court in the place of residence or establishment of the client.
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