GENERAL TERMS AND CONDITIONS

I. – Scope of application

These general terms and conditions apply to all services that the professional performs for the client, as identified in the engagement letter.

In the event of conflict between the general terms and conditions and the engagement letter and its annexes, the provisions of the engagement letter and the annexes shall prevail.

II. – Start of the agreement

In the absence of a contrary provision in the engagement letter, the agreement is concluded and enters into force at the time the professional co-signs the engagement letter signed by the client.

If the professional, at the client’s request, nevertheless begins executing the engagement at an earlier date for exceptional or urgent reasons, such execution shall, with retroactive effect, be deemed to fall within the scope of the agreement from the moment the engagement letter has been signed in accordance with the first paragraph of this article.

III. – Termination of the agreement

The professional and the client may, subject to the modalities set out below, terminate this agreement and/or the mandates linked to the engagement letter by sending an email, confirmed by registered letter.

The professional shall nonetheless retain the right to payment of fees and costs in respect of work already performed and closing operations.

3.1. Recurring engagements

3.1.1. Definition

A ‘recurring engagement’ means: all engagements that are of a recurring nature and that do not meet the definition of ‘non-recurring engagements’ in Article 3.2.1.

3.1.2. Duration and end of the agreement

Unless the engagement letter provides otherwise, the agreement for a recurring engagement shall be deemed concluded for an indefinite period.

Either party may terminate the agreement at any time by means of a notice notified by email, confirmed by registered letter.

Except in the case of immediate termination for a specific reason (see 4.1 and 4.2 below) or a contrary clause in the engagement letter, a notice period of 1 month applies when the professional and/or the client terminates the agreement.

If the client does not expressly state in the termination notice that it will observe the notice period, that notice period shall, unless the parties agree otherwise, be replaced by a fixed indemnity equal to a proportionate share of the fees for the notice period (1/12, 1/6 or 1/4 of the annual fees) corresponding to the services customarily provided by the professional for a full financial year or, where applicable, a calendar year.

During the notice period, the provisions of the agreement continue to apply. However, preparation of the annual accounts for the financial year preceding the termination date is immediately suspended on the date of receipt by the professional of the client’s notice; [unless otherwise agreed and subject to provision of the professional’s costs and fees by the client].

3.2. Non-recurring engagements

3.2.1. Definition

Non-recurring engagements are one-off and non-recurring engagements whose completion brings the engagement to an end.

3.2.2. Duration and end of the agreement

Absent evidence to the contrary, the agreement in respect of a non-recurring engagement shall be deemed concluded for a fixed term.

It ends upon completion of the engagement and, where applicable given the nature of the engagement, upon completion of the agreed services.

The client has, pursuant to Article 1794 of the Civil Code and, where applicable, by way of derogation from Article 2004 of the Civil Code, the right to terminate the agreement before its term by email confirmed by registered letter, provided the client pays the professional:

a.         all costs and fees corresponding to work already performed;

b.         everything the professional could additionally have earned during the execution of the engagement.

This indemnity is calculated on an actual basis, with a minimum of 25% of the fees that would have been due in the event of full execution of the engagement.

3.4. Mandates

Upon termination of the engagement, the client undertakes to immediately revoke all mandates granted to the professional, such as those relating to the filing of tax returns or VAT returns, the filing of annual accounts, representation, access to the UBO register, etc.

IV. – Immediate termination for specific reason(s)

4.1. In all cases, the professional may terminate the agreement at any time without notice or indemnity if there are reasons making continuation of the collaboration impossible, such as:

a.         circumstances that compromise the professional’s independence;

b.         circumstances that make it impossible to execute the engagement in accordance with professional and ethical standards;

c.         manifest failure(s) by the client to comply with its own obligations as described in these general terms and conditions (point 6.2) or in the engagement letter and its annexes.

The reasons justifying the immediate cessation of the agreement must be communicated to the client.

Depending on the circumstances, the professional may give prior warning before taking the decision.

Immediate termination for the reason referred to under c. is preceded by a formal notice of default.

When the professional terminates the agreement for specific reason(s), it communicates in writing to the client the reason for termination and informs the client of the urgent and necessary legal acts that must be taken to safeguard the client’s rights, for which the professional had been mandated.

4.2. In the event of the client’s bankruptcy or death, the agreement is automatically dissolved by operation of law.

In the event of the death of the client as a natural person, the engagements are dissolved by operation of law. They may be resumed in order to fulfil the obligations of the deceased, subject to written confirmation from all heirs.

4.3. The client may terminate the agreement at any time without notice or indemnity where the professional manifestly fails to comply with its obligations as described in these general terms and conditions (point 6.1) and, where applicable, in the engagement letter.

In any event, the client must give prior written notice of default to the professional before making such decision.

4.4. The replacement of the person responsible for executing the engagement may under no circumstances be invoked by the client as a legitimate ground for termination of the agreement.

V. – Suspension of performance of obligations

In the event of non-performance, improper performance or late performance by the client of one or more of its obligations, for example non-payment of fees or advance payments in accordance with Article 7, the professional is entitled to suspend or defer performance of its own obligations until the client has complied with its obligations.

The professional shall first inform the client and send a formal notice of default.

If urgent and necessary work must be carried out to safeguard the client’s rights and falls within the professional’s engagement, the professional shall bring this to the client’s attention.

All costs and charges (including fines and indemnities) arising from the suspension or deferral shall be borne exclusively by the client.

The professional is also entitled to payment of its fees and costs in these circumstances.

VI. – Rights and obligations of the parties

6.1. Rights and obligations of the professional

Except as regards compliance with statutory time limits and provided the client has fulfilled all its obligations referred to in Article 6.2, the professional’s undertakings constitute obligations of means in accordance with Article 5.72, paragraph 1 of the Civil Code.

The professional executes the engagements entrusted to it in full independence and with the requisite care, taking into account the professional’s overall schedule.

The professional ensures that services are delivered in accordance with the ethical and other professional standards of the ITAA and taking into account the relevant legislation and regulations in force at the time of execution of the agreement.

The execution of the engagement is – unless the engagement letter provides otherwise – not specifically aimed at detecting potential fraud.

Unless the engagement letter provides otherwise, the professional is not required to verify the accuracy, completeness, reliability or probative value of the information communicated by the client or its agents.

The client accepts that the professional may, at its own discretion, engage collaborators (employees or sub-contractors) with the required competences and qualifications to carry out the engagement.

6.2. Rights and obligations of the client

The client undertakes to provide its full cooperation, free of charge, in the execution of the engagement by the professional in accordance with the professional’s instructions.

The client undertakes in particular to:

-        Immediately notify the professional of any change to its contact details, address, corporate mandates, shareholding, etc., as well as any change in its ultimate beneficial owners.

-        Perform the tasks assigned to it, where applicable in accordance with the engagement letter and/or annexes, within the time limit set by the professional.

-        Continuously provide, and at the latest within 5 days of the end of the taxable period or financial year, the documents and information necessary for, inter alia, the preparation of VAT returns, personal income tax returns, corporate income tax returns and annual accounts.

-        Continuously and as promptly as possible provide the professional with all accurate, precise and up-to-date information and any subsequent change thereto that may require an adjustment to the professional’s engagement, in particular, without being exhaustive, with regard to any significant change in its financial situation, debt position or cash position.

-        Confirm in writing that the documents, information and explanations provided are accurate and complete, if the professional requests this.

-        Verify whether the documents and statements drawn up by the professional correspond to its expectations and to the information provided, and if not, immediately report this to the professional.

-        Notify the professional of any non-payment to any tax or social security authority, or any material non-payment to other creditors, from the first day of default.

-        Immediately inform the professional of any claims brought against the client or risks the client is likely to incur.

VII. – Fees

7.1. Determination of fees and costs

Costs and fees are determined as set out in the engagement letter and its annexes. Where no fees have been determined, an hourly rate of € 160 applies.

7.2. Payment terms

Invoices are payable immediately upon receipt, unless the invoice provides for a longer payment term.

Any delay in payment gives rise, by operation of law and without notice of default being required, to:

a.         the addition of compensatory interest at the rate set by the Act of 2 August 2002 on combating late payment in commercial transactions;

b.         a fixed indemnity of 10% of the outstanding amounts, with a minimum of € 250.00.

Delays in the execution of the engagement not attributable to the professional do not prevent the invoicing of advance payments.

7.3. Advance payments

The professional may request one or more advance payments by means of a proforma invoice. These advance payments are credited in the balance invoice.

7.4. Disputes

Any dispute regarding an invoice must be raised within 7 calendar days of the invoice date by registered letter, detailing and documenting the reason for the dispute in a substantiated manner. If the professional receives no dispute, or a late or unsubstantiated dispute, the debt is considered final and the amount is indisputably due. The client is furthermore deemed to agree with the invoiced services, the time spent and the rate applied.

7.5. VAT

All amounts invoiced by the professional are subject to VAT and any other applicable taxes.

VIII. – Liability of the professional

The professional ensures that services are delivered in accordance with the ethical and other professional standards of the ITAA and in compliance with the relevant legislation and regulations in force at the time of execution of the engagement.

The professional cannot be held liable for the consequences of any subsequent amendments – possibly with retroactive effect – to those legislative or regulatory provisions.

Furthermore, the professional cannot be held liable for professional errors and mistakes made prior to the entry into force of the engagement letter by any person whatsoever. The professional may therefore assume that the bookkeeping already maintained by the client and the historical data provided are complete, reliable and accurate.

The professional can only be held liable for engagements that are proven to have been accepted in writing by the professional.

The professional has covered its civil professional liability under an insurance agreement approved by the Council of the Institute of Tax Advisers and Accountants: Allianz Benelux NV (0403.258.197) with registered office at B-1000 Brussels, Boulevard du Roi Albert II 32, AXA Belgium NV (0404.483.367) with registered office at B-1000 Brussels, Place du Trône 1, and Zurich Insurance Europe AG (0882.245.682) Belgian branch with registered office at 1930 Zaventem, Da Vincilaan 5.

The professional’s liability is limited to the amount of the effective intervention of the abovementioned insurer, except:

-        in the event of intentional fault or gross negligence excluded from cover by the said insurance;

-        in the event of execution of special engagements reserved by law to certified accountants for which the law prohibits the limitation or exclusion of liability.

Where two or more loss events prove to be the consequence of the same fault, they shall be deemed to constitute a single case of liability.

Unless mandatory statutory provision provides otherwise, damage arising from (a) a loss of profit, goodwill, commercial opportunities or anticipated cost savings or benefits, (b) a loss or misuse of data, or (c) indirect loss or consequential damage shall not give rise to compensation.

Except for a) intentional faults or gross negligence excluded from the professional liability insurer’s cover, b) special engagements reserved by law to certified accountants for which the law prohibits the limitation or exclusion of liability, and c) any exclusion or limitation of liability prohibited by a mandatory statutory provision, the statutory provisions on non-contractual liability for damage caused by non-performance of the engagement shall not apply between the parties. This exclusion of the applicability of the statutory provisions in the context of non-contractual liability may also be invoked by the auxiliary persons engaged by the professional.

If the damage is also attributable to the client or a third party, the professional shall, vis-à-vis the client, only be liable to compensate for the share caused by the professional’s fault, to the exclusion of any joint and several liability.

The professional can never be held liable for damage:

a)    If and to the extent that the client has a right of claim against third parties (whether statutory or based on an insurance policy or other agreement) and has actually received compensation from that third party, or if the client would have had that right of claim but has not exercised it;

b)    If and to the extent that the damage would not have existed (or not for the amount claimed) as a result of negligence or a deliberate decision or act of the client. Thus, for example, the professional is never liable for failure to comply with time limits imposed by laws, regulations and agreements for the execution of tax, social or other formalities falling within the scope of the engagement, where such formalities have not been fulfilled, or have not been fulfilled in time or in full, owing to the client.

The amount of damage that the professional is required to compensate to the client shall be reduced:

a)    by the amount of any compensation the client receives from any third party (including its insurer) in respect of the damage;

b)    by the fiscal advantages enjoyed by the client, such as VAT recovered or recoverable on the indemnity and corporate income tax.

All claims against the professional on whatever factual or legal basis shall become time-barred two years after termination of the agreement.

The limitations and exclusions of liability set out in the agreement also apply to claims directed against all (legal) persons, employees, partners, directors, managers and/or self-employed collaborators engaged by the professional.

IX. – Transfer of documents – archiving – accounting data

Unless the professional requests original documents to be transmitted, the client transmits only copies to the professional and ensures that it always retains the original or at least a (digital) copy itself.

The professional may use the transmitted documents and data for the execution of its engagement and may retain them for the period necessary to respond to any claims or questions regarding the execution of the engagement.

The client is responsible for the systematic maintenance of its own (digital) archive for the period required by law.

Transmission of documents after termination of the agreement to a successor colleague or to the client shall take place – at the professional’s choice – either in paper form or digitally.

In the case of paper documents, the client undertakes to collect them within 14 days of the end of the engagement at the professional’s registered office or at a place designated by the professional, subject to signature of an inventory.

The digital data created for the client in the software used by the professional shall be made available to the client after termination of the agreement a) insofar as the client or its new accountant also has access to this software and b) to the extent that this software permits.

If the client or its new accountant opts to use different software, the professional shall make the data available in the format that the software used by the professional permits.

The transfer of documents and data after termination of the agreement shall be charged by the professional at the hourly rate then in force, with a minimum of € 250.

X.- Professional confidentiality and money laundering

The professional, as well as its authorised representatives or employees, are required to observe professional confidentiality within the framework of the engagements entrusted to them, in accordance with applicable legislation.

By way of exception, the legislation on the prevention of the use of the financial system for money laundering and the financing of terrorism releases the professional from its professional secrecy.

The client confirms awareness of the fact that the professional is subject to the legislation on the prevention of the use of the financial system for money laundering and the financing of terrorism, and undertakes to immediately provide the professional with all information and/or documents required under that legislation.

XI. – Privacy – data processing - confidentiality

The client acknowledges that the professional informed it, prior to the conclusion of the agreement, that its personal data are processed by the professional for the purposes of the contractual and administrative management of its file, in compliance with the applicable legislation imposed on the professional and for the execution of the engagements agreed between them.

The client is aware that the professional’s privacy statement is permanently accessible on the website www.vandenneste.net.

All information and data that the parties communicate to each other in the context of the agreement – regardless of their form – are considered strictly confidential and may not be disclosed to third parties without written consent. This obligation applies during the term of the agreement and for at least ten years after its termination.

Confidential information may only be shared with staff, agents or sub-contractors to the extent necessary for the performance of the agreement.

The professional may refer to the client as a reference but shall request prior consent for use in marketing or advertising.

XII. - Amendment

The professional reserves the right to unilaterally amend the provisions of the engagement letter, the annexes and/or the general terms and conditions.

Amendments or new versions of the engagement letter, its annexes and the general terms and conditions shall be brought to the attention of the client by any means the professional deems appropriate for that purpose, such as notification by inclusion of the amendments on the invoice to the client, or notification via services where they can be digitally accepted by the client or a user of the client.

The client confirms that each of the client’s users is authorised by the client to validly accept future amendments on the client’s behalf.

If the client refuses the proposed amendment, the parties have the right to terminate the agreement free of charge by email confirmed by registered letter and subject to observance of a notice period of one (1) month from notification of the refusal.

XIII. – Intellectual property rights

All intellectual property rights in creations developed by the professional (or its agents) within the framework of the agreement shall remain the exclusive property of the professional or its licensors. No transfer of these rights to the client shall take place.

Reports, documents and other creations prepared by the professional may only be used by the client after full payment of the fees and costs due, and exclusively within the scope of the engagement for which they were prepared. The professional may use data provided by the client for internal analyses and benchmarking. Working documents shall at all times remain the property of the professional.

XIV. – Severability

If one or more provisions of the agreement were to be declared void, invalid or unenforceable, in whole or in part, this shall not affect the validity and enforceability of the remaining provisions. In such event, the parties undertake to replace the void, invalid or unenforceable provision with a valid and enforceable provision that most closely approximates the original economic and legal purpose of the provision concerned. If such replacement proves impossible, the provision concerned shall be deemed replaced by a provision that, within the limits of what is legally permitted, most closely reflects the parties’ intention.

XV. - Transferability

The professional has the right to transfer the agreement.

Where, outside the application and effects of the transactions defined in Articles 12:2 to 12:11 of the Code of Companies and Associations, this agreement is transferred in the context of a transfer of clientele to a legal entity recognised by the Institute of Tax Advisers and Accountants (hereinafter ‘the ITAA’), the professional shall inform the client in writing no later than fifteen days after the transfer of the complete details of the transferee, including its registration number in the ITAA’s public register. This notification shall also inform the client that the engagement will be continued by the transferee and from when. The client and the professional acknowledge and accept that the agreement shall subsequently be continued with the transferee.

XVI. Non-solicitation clause

The client undertakes, during the term of the agreement and for 12 months after its termination (for whatever reason), not to solicit, recruit or induce, directly or indirectly, in any manner whatsoever, any collaborator (employee, self-employed collaborator or sub-contractor) of the professional involved in the execution of the engagement, to terminate their collaboration with the professional, or to have them carry out work directly or indirectly. Any breach of this prohibition shall give rise to a fixed indemnity of € 40,000. The parties confirm that this amount constitutes a fair estimate of the potential damage to the professional, who retains the right to prove higher damage and claim compensation therefor.

XVII. Force majeure and unforeseen conditions

The professional shall not be liable for non-performance, delayed or defective performance of its obligations where this results from a non-attributable external cause (force majeure). Force majeure encompasses all unforeseeable and unavoidable circumstances making performance impossible, very difficult or excessively onerous, such as, inter alia, strikes, war, government measures, pandemics, technical failures, supply problems, price increases or insolvency of third parties.

In the event of force majeure, the client has no right to compensation. The performance period is automatically extended by the duration of the interruption, including the restart period.

If, outside cases of force majeure, unforeseen circumstances arise after the conclusion of the agreement that are not attributable to the professional or the client, the financial risk of which neither party has assumed, and that seriously impede or aggravate performance of the obligation(s) by the professional, thereby disrupting the contractual balance, the parties shall renegotiate and, if necessary, adapt the agreement. During these negotiations, the obligations remain in force. If no agreement is reached within 14 days, the professional may suspend its obligations or terminate the agreement with a one-month notice period, without compensation.

XVIII. – Digital communication – Digital signature – ICT security

The client accepts that the professional is entitled to communicate electronically via customary digital channels. Both parties shall, taking into account the state of the art and cyber risks, implement appropriate security measures (such as firewalls, updates, multi-factor authentication, access control, password management, virus protection and awareness training), without prejudice to statutory obligations regarding data protection and information security. However, complete elimination of risks is not possible.

The professional may process and store electronically all data obtained within the framework of the agreement. Each party remains responsible for the security of its own systems and data. The client bears sole responsibility for damage resulting from inadequate security, careless use or errors by the client itself or its staff.

The client must keep its account credentials and passwords strictly confidential and is fully responsible for their use. The professional is not liable for misuse of security measures.

The professional may make use of electronic signatures and determines the extent to which they are applied, in accordance with applicable legislation.

If the professional gains remote access to the client’s network, appropriate security measures shall be taken, but liability for resulting damage is, to the extent legally permitted, excluded.

XIX. – Applicable law and dispute resolution

Only this agreement applies to the relationship between the client and the professional, to the exclusion of all conditions of the client.

The interpretation and execution of the agreement are governed by Belgian law.

The parties are aware that in the event of a dispute between them, the possibility exists of attempting an alternative method of dispute resolution.

In the absence of a mutual agreement on an alternative method of dispute resolution, all unresolved disputes, of whatever nature, shall fall within the jurisdiction of the courts and tribunals having territorial competence for the registered office of the professional.

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