Article 1 Definitions

The capitalized terms in the context of these general terms shall have the following meaning:

  1. a. Baker Tilly Dutch Caribbean:

The legal entities comprised of accountancy and tax consultancy practices in Curaçao (Baker Tilly Curaçao), St. Maarten (Baker Tilly St. Maarten), Bonaire (Baker Tilly Bonaire) and Aruba (Baker Tilly Aruba), and those who apply these general conditions;

  1. b. Contractor:

The Baker Tilly Dutch Caribbean entity which only accepts and carries out the Assignment   through its accountancy and tax consultancy practices, and not by or through an individual employee, regardless if the Client has granted the Assignment explicitly or implicitly with a view to the performance thereof by a certain Employee or certain Employees. The articles 7:404, 7:407 paragraph 2 and 7:409 of the Civil Code are expressly excluded from application;

  1. c. Client:

The natural person, legal entity or other entity which has given the Assignment to the

Contractor to perform the work;

  1. d. Work:

All work to be performed by the Contractor for the Client which has been commissioned to and which has been accepted by the Contractor as well as all the wok resulting therefrom for the Contractor.

  1. e. Assignment:

The assignment agreement, in which the Contractor binds himself towards the Client to perform certain Work;

  1. f. Documents:

All the information or data made available by the Client to the Contractor, which includes but is not limited to: paper, CD-ROMs, hard disks, e-mail and digital environments, which may or may not be managed by third parties, as well as all information produced or

collected in the scope of the performance of the Assignment by the Contractor, which includes but is not limited to: paper, CD-ROMs, hard disks, e-mail and digital environments, which may or may not be managed by third parties, together with all other

information relevant for the performance or completion of the Assignment, which includes but is not limited to paper;

  1. g. Employee:

A natural person employed by or associated with the Contractor, possibly, but not necessarily, on the basis of a contract of employment.

 

Article 2 Applicability

  1. 1. These general terms and conditions are applicable to: all offers, quotations, assignments, legal relationships and agreements, by any name whatsoever, where Contractor binds/ will bind himself to perform work for the Client, as well as all the work resulting therefrom for the Contractor.
  2. 2. Deviations from and additions to these general terms and conditions are only valid when these have been expressly agreed to in writing in, for example, an (written) agreement or a confirmation of assignment.
  3. 3. In the event that these general terms and conditions and the confirmation of assignment contain conflicting conditions, the conditions included in the confirmation of assignment will prevail.
  4. 4. The application of the general terms and conditions of the Client is explicitly

rejected by the Contractor.

  1. 5. The Assignment – and these general terms and conditions– documents all the agreements between the Client and the Contractor relating to the Work for which

this assignment has been entered into. All the agreements or proposals made before between parties shall lapse.

  1. Contractor is an independent member of Baker Tilly International. Baker Tilly

International Limited is an English company. Baker Tilly International does not provide professional services to clients. Each member firm is a separate and

independent legal entity and claims to be as such. The Contractor is not an agent

of Baker Tilly International and is not authorized to bind Baker Tilly International nor to act on behalf of Baker Tilly International. Neither Baker Tilly International,

nor Contractor, nor any one of the other independent member firms of Baker Tilly

International accepts the liability for the acts or omissions of each other. In addition, neither Baker Tilly International, nor any other member firm has the right

to exercise management control over another member firm.

 

Article 3 Information of the Client

  1. The Client shall provide all Documents which the Contractor needs in its opinion for the adequate performance of the granted Assignment, (a) in the requested form, (b) in the requested way and (c) in good time to the Contractor. Contractor determines what is meant by the requested form, requested way and in good time.
  2. The Client certifies the accuracy and trustworthiness of the Documents provided by it also if these originate from third parties, except as otherwise dictated by the nature of the assignment.
  3. Contractor has the right to suspend the performance of the Assignment until the Client meets the requirements mentioned in the first and second paragraph.
  4. The Client indemnifies the Contractor against damages incurred because the Documents are inaccurate or incomplete.
  5. The additional costs and extra hours incurred by the Contractor, as well as the additional damages for the Contractor resulting from non-disclosure, not providing in good time or not providing necessary Documents properly for the performance of the Work by the Client are for the account and risk of the Client.
  6. On the first request of the Client the Contractor shall return the original. Documents provided by the Client to the Client.

Article 4 Performance of Assignment

  1. The Contractor shall perform the Assignment to the best of his ability and in compliance with the relevant legislation and (professional) regulations. However, the Contractor cannot guarantee the achievement of any intended result.
  2. The Contractor shall determine the way in which the Assignment will be performed and by which Employee(s) the Assignment will be performe Contractor, if possible, shall take into account instructions of the Client provided in a timely and responsible manner with reference to the performance of the Assignment.
  3. The Contractor is entitled to have the Work performed by a third party appointed by the Contractor, including another Baker Tilly Dutch Caribbean entity, without a notification to and explicit consent of the Client, if this is desirable in the judgement of the Contractor.  The costs of this to be appointed third party will be charged to the Client.
  4. If during the course of the Assignment, Work is performed for the benefit of the profession or company of the Client, which is not covered by the Work as defined pursuant to the Assignment, this Work shall be considered to be performed pursuant to separate Assignments.
  5. When a deadline/date has been agreed to between Client and Contractor by which the Assignment shall be performed and the Client fails to: (a) provide an advance – if agreed to - or (b) put at the disposal the necessary Documents in a timely manner, completely, in the requested form and in the requested way, then Client and Contractor will consult each other regarding a new deadline/date by which the Assignment will be performed.
  6. Deadlines by which the Work will be performed set at or during the performance of the Assignment only count as approximations and are not to be regarded as firm date When exceeded, such a deadline will therefore not constitute an attributable shortcoming of the Contractor and therefore cannot constitute a ground for dissolution of the Assignment. Deadlines are to be considered firm dates only when agreed upon explicitly and expressly between the Client and Contractor.
  7. The performance of the Assignment is not specifically aimed at detecting fraud – unless otherwise mentioned expressly in writing. In the event the Work reveals indications of fraud, the Contractor will report this to the Client. In this regard the Contractor is bound by the applicable rules and legislation and by the different regulations and directives issued by professional associations.

 

Article 5 (Professional) Regulations

  1. The Client shall provide full cooperation at all times with the obligations which arise from the relevant (professional) regulations for the Contractor.
  2. The Client is aware that the Contractor –among others, but not limited to the

following-:

a. may be required to report certain transactions under applicable legislation and regulations, described in the laws and regulations and which  have come to light during the performance of the Work, to the authorities created for this purpose;

b. may be required in certain situations, pursuant to applicable legislation and regulations, to report an instance of fraud

c. may be required to investigate (the identity of) the Client under the applicable legislation and regulations.

  1. Contractor excludes every liability for damage to the Client as a result of compliance by the Contractor with the legislation and (professional) regulations applicable to him.

 

Article 6 Confidentiality and Exclusivity

  1. Contractor is required to maintain confidentiality with regard to third parties that are not involved in the performance of the Assignment. This confidentiality relates to all information of a confidential nature which has been provided to it by the Client and the results obtained by the processing thereo This confidentiality does not apply to statutory or professional rules, including but not limited to the reporting obligation resulting from legislation to prevent money laundering and financing of terrorism and other national or international legislation of a similar tenor, which impose on the Contractor an obligation to provide information, or insofar as the Client has released the Contractor from the obligation of confidentiality. This regulation does not prevent consultations among colleagues within the organization of the Contractor, insofar as the Contractor considers this necessary for a prudent performance of the Assignment or the careful fulfillment of the statutory or professional obligations.
  1. The Contractor is not authorized to use the information provided to it by the Client for any other purpose than that for which it was obtained, except in case the Contractor acts on its own behalf in disciplinary, civil, administrative or criminal proceedings in which these documents may be relevant. If the Contractor is accused of having committed or participated in an offence or a crime, it is entitled to disclose Documents of the client to the Tax Inspectorate or the Court if such disclosure is necessary in the context of conducting a defense by the Contractor.
  1. Except with the express written advance permission of the Contractor, the Client is not permitted to publicly release the content of any advice, opinions or other written statements of the Contractor or provide these to third parties, other than for the purpose of obtaining an expert opinion on the Work of the Contractor. In such a case Client will impose its obligations on the basis of this article on the third parties it calls in.
  1. In the event of any violation of the prohibition contained in the previous paragraph the Client is under obligation to pay an immediately due and payable penalty, not subject to any legal moderation, to the Contractor amounting to ANG 25.000,=, without prejudice to the Contractor to sue for damages.
  1. Contractor has the right to - confidentially – share information about the Client, including information with regard to the colleagues of the Client, the relationship of the Contractor with the Client and the Work, including confidential information and personal data with other Baker Tilly Dutch Caribbean entities and to use this to improve and complement the provision of services.

 

Article 7 Intellectual Property

  1. Performance of the Assignment by the Contractor does not imply transfer of intellectual property rights of the Contracto All intellectual property rights that arise during, or result from, the performance of the Assignment accrue to the Contractor.
  2. The Client is explicitly prohibited from reproducing, publishing or exploiting products incorporating the intellectual property rights of the Contractor, or products in which intellectual property rights are vested with regard to the use of which the Contractor has acquired rights of use – including for this purpose in any case, but not limited to: computer programs, system designs, working methods, advice, (model)contracts, templates, macros and other intellectual products.
  1. The Client is not permitted to provide (auxiliary materials of) the products mentioned in the second paragraph to third parties without prior written authorization of the Contractor, other than for the purpose of obtaining an expert opinion on the Work of the Contractor. In that case the Client will impose its obligations pursuant to this article on the third parties called in by it.
  1. In the event of violation of the prohibition in paragraph 2 and/or 3 the Client is under obligation to pay an immediately due and payable penalty, not subject to any legal moderation, to the Contractor amounting to ANG 25.000,=, without prejudice to the Contractor to sue for damages.
  1. Regarding the performance of Work for the Client and/or clients of the Contractor and/or clients of another Baker Tilly Dutch Caribbean entity, the Contractor is entitled to use, develop and exchange the knowledge, experience and general skills which the Contractor has acquired as a result of the performance of the Work, with (an) other Baker Tilly Dutch Caribbean entity (entities).

 

Article 8 Force Majeure

1.  If the parties cannot, cannot in good time or cannot properly comply with the obligations of the Assignment as a result of force majeure within the meaning of art. 6:75 of the Civil Code then those obligations will be suspended up to the moment that the parties are able to fulfil the obligations in the agreed manner.

2. In the event that the situation referred to in the first paragraph occurs, the parties have the right to terminate the Assignment in writing wholly or partly and with immediate effect, without being entitled to any damages.

 

Article 9 Fee

  1. The Contractor will bill the Client for Work carried out on the basis of time spent and costs incurred.
  2. In addition to the fee, the costs incurred by the Contractor and any expenses charged to the Contractor by third parties will also be charged to the Client.
  1. The Contractor reserves the right to request an advance from the Client.
  2. If after the realization of the Assignment, but before the Work has been entirely completed, fees or prices change, the Contractor will be authorized to modify the agreed rate accordingly.
  1. The fee, where necessary increased by advances and invoices from third parties and expenses incurred, will be billed monthly, unless otherwise agreed. Over all the amounts due by the Client to the Contractor turnover tax will be charged separately if required by law.

 

Article 10 Payment

  1. Payment of the amounts due by the Client to the Contractor shall take place within 14 days after the invoice date, without right to any deduction, discount or compensation, unless otherwise agreed. The day of payment is the day the amount due is transferred to the account of the Contractor.
  1. If the Client has not paid within the period stipulated in the first paragraph or another period agreed to between the parties, the Client shall be in default by operation of law and the Contractor shall be entitled to charge Client the statutory (commercial) interest from that moment on.
  1. If the Client has not paid within the period stipulated in the first paragraph, the Client is bound to compensate the Contractor for all the legal and other (collection) costs incurred. The compensation of the costs incurred is not limited to any cost ruling to be imposed by the judge.
  1. In the event of an Assignment granted collectively, the Clients shall be jointly and severally liable for the due payment of the invoice amount and the interest(s) and costs due, insofar as the Work was performed on behalf of the joint Clients.
  2. If the financial position or the payment history of the Client, in the judgement of the Contractor, gives rise thereto, or when the Client fails to pay an advance or invoice within the stipulated payment period, the Contractor is entitled to require the Client to provide immediate (additional) security in a form to be determined by the Contractor. In the event the Client fails to provide the desired security, the Contractor, without prejudice to its other rights, is entitled to immediately suspend any further performance of the Assignment and all amounts due by Client to the Contractor regardless where these arise from, shall be immediately payable.

 

Article 11 Complaints

  1. Complaints related to the performed Work and/or the invoice amount shall be notified in writing within 30 days after the dispatch of the documents or information to which the complaint relates, or within 30 days of discovering the defect if the Client can substantiate its inability to reasonably detect the defect sooner, to Contractor accurately describing the nature and cause of the complaints.
  2. Complaints as referred to in the first paragraph will not suspend the Client’s payment obligations except insofar as Contractor has made it known that it deems the complaint to be justified.
  1. Contractor must be allowed to examine the complaint of the Client.
  2. In the event that a justified complaint has been made, the Contractor will have a choice between adjusting the fee charged, correcting or performing the rejected Work again free of charge or partially or totally not or no longer performing the Assignment against a proportionate refund of the fees already paid by the Client.
  3. If the complaint is not instituted in a timely manner then all the Client’s rights in respect of the complaint shall be forfeited.

 

Article 12 Liability and Indemnities

  1. The Contractor is only liable towards the Client for damages directly resulting from (a series of related) attributable failure(s) in the performance of the Assignment. This liability is limited to the amount to be paid according to the liability insurer of the Contractor in the relevant case, plus any excess to be borne by the Contractor under the insurance coverage. When, for whatever reason, the liability insurer fails to pay out, the liability of the Contractor shall be limited to the amount of the fee charged for the performance of the Assignment When the performance of the Assignment spans a period of more than 12 months, then the amount referred to above shall be set at three times the amount of the fee charged to the Client in the twelve months preceding the occurrence of the damage. The total compensation for the damage pursuant to this article shall in no case exceed ANG 500.000,= per incident, with a series of connected incidents being regarded as one incident, unless the parties – in view of the scope of the Assignment or the risks associated with it – see a reason to deviate from this maximum when entering into the Assignment.
  2. Except in the event of willful misconduct or gross negligence on the part of the

Contractor, the Contractor shall not be liable for

a. any damages sustained by the Client or any third party that result from the provision of incorrect or incomplete Documents by the Client to the Contractor, or otherwise as a result of acts or omissions of the Client

b. any damages sustained by the Client or any third party that result from acts or omissions of auxiliary persons engaged by the Contractor (excluding Employees), even if such persons are employed by an organization affiliated with the Contractor;

c. any trading losses, indirect damages or consequential damages suffered by the Client or third parties, including but not limited to loss of profits, missed savings, damage by stagnation of the Client’s business operations.

3. A further condition for liability is that the Client inform the Contractor of the shortcoming in writing immediately after the discovery thereof and the Contractor shall at all times be entitled, as far as possible, to remedy or limit the damage of the Client by rectifying or improving the defective product

4. The Client is obliged to take the necessary actions to mitigate the damage.

5. The Contractor shall not be liable for any damage to or destruction of Documents during transportation or postal dispatch, irrespective of whether the transport or

dispatch was made by or on behalf of the Client, the Contractor or a third party.

6. The Client shall indemnify the Contractor against all possible third party claims, including   from   shareholders, directors, supervisory   board   members   and employees of the Client, as well as related legal entities and companies and others that are involved in the organization of the Client, which directly or indirectly are related to the performance of the Assignment. The Client indemnifies the Contractor in particular against all claims by third parties for loss or damages incurred due to the fact that the Client did not provide Documents, or provided inaccurate or incomplete Documents to the Contractor.

7. The Client shall indemnify the Contractor against all possible claims of Employees of Contractor and third parties appointed by the Contractor who in connection with the performance of the Assignment suffer damages which result from an act or omission of the Client or of the unsafe working conditions within its company or organization

8. The Client shall indemnify the Contractor against all possible third party claims, in the event that the Contractor, by virtue of the law and/or its professional rules, shall be compelled to hand back the Assignment and/or shall be compelled to cooperate with government institutions that are entitled to obtain requested or unrequested information, which the Contractor has obtained in the course of performing the Assignment from the Client or third parties.

9. Any other Baker Tilly Dutch Caribbean entity, its employees (regardless of whether they are involved in the Assignment or not) or other third parties involved by the Contractor in the performance of the Assignment shall not be liable for any damages on the part of the Client in connection with the Assignment. The limitation of liability and safeguards laid down in these general terms and conditions shall in any case apply mutatis mutandis, and are also stipulated for the benefit of other Baker Tilly Dutch Caribbean entities (regardless of whether they are involved in the Work or not).

 

Article 13 Termination

1. The Client and the Contractor may terminate the Assignment (prematurely) at all times without observing a period of notice. If the Assignment terminates before the Work is completed, the Client will owe a fee for time spent performing Work for the Client as specified by the Contractor

2. Notice of termination must be given in writing.

3. If the Client decides to terminate the Assignment (prematurely), the Contractor is entitled to compensation for the resulting demonstrable loss of capacity, as well as compensation for additional costs the Contractor already incurred and costs incurred from cancellation of contracts with third parties (such as possible costs related to subcontractors)

4. If the Contractor decides to terminate the Assignment (prematurely), the Client has the right to assistance from the Contractor in transferring work to third parties,unless the Contractor was forced to terminate the Assignment because of intent or deliberate recklessness on the part of Client. The right to assistance as defined in this paragraph applies on the condition that all outstanding advances and invoices have been paid by the Client.

 

Article 14 Right of suspension

  1. Following a careful weighing up of the interests involved, the Contractor is entitled to suspend fulfilment of its obligations, including the issuing of Documents or other items to the Client or third parties, until all due and payable claims against the Client have been settled in full.
  2. The first paragraph does not apply to Documents provided by the Client that have not (yet) been processed by the Contractor.

 

Article 15 Time limit

Insofar as these general terms and conditions do not stipulate otherwise, the rights of action and other powers of the Client of whatever nature and for whatever reason against the Contractor in connection with the Work performed by the Contractor shall always expire after one year from the moment the Client became aware or could reasonably have become aware of the existence of these rights and powers. This deadline does not relate to the possibility to submit a complaint to the body/bodies designated to handle complaints and/or the Dispute Adjudication Board.

 

Article 16 Electronic Communication

  1. During the performance of the Assignment the Client and Contractor can communicate with each other through electronic means at the request of the Client.
  2. The Client and Contractor shall not be liable for any damages incurred by either or both parties that follow from the use of electronic means of communication, including but not limited to, damages arising from failure to deliver or delay in delivery of electronic communication by third parties or by software/equipment used for the transmission, delivery, receipt or processing of electronic communication, transmission of viruses and total or partial failure of the telecommunications network or other tools used for electronic communication, except insofar as the damages result from an intentional act or gross negligence.
  1. The Client and the Contractor will both do or omit to do everything that may reasonably be expected of each of them to prevent the risks referred to above from occurring.
  1. The data extracts from the computer systems of the sender shall constitute compelling proof of (the content of) the electronic communication sent by the sender until such time as the recipient provides evidence to the contrary.

 

Article 17 Other provisions

  1. If the Contractor performs Work on the Client’s premises, the Client must provide a suitable workplace that meets all statutory occupational health and safety requirements and all other relevant regulations that apply to working condition In that case the Client shall ensure that the Contractor is provided with office space and other facilities that the Contractor deems necessary or desirable for the performance of the Assignment and which should meet all the applicable (statutory) requirements. With respect to the provided (computer) facilities the Client is obliged to ensure continuity, among others by means of sufficient back-up, safety and virus control procedures. The Contractor will carry out the virus control procedures when the Contractor makes use of the facilities of the Client.
  2. The Client will refrain from employing or approaching Employees involved in the performance of the Work to enter directly or indirectly into the Client’s service, whether or not temporarily, or to, directly or indirectly for the benefit of Client, perform work, whether employed or self-employed, during the term of the Assignment or any extension thereof and during the 12 months thereafter.

 

Article 18 Applicable law and Choice of forum

  1. The Assignment is governed by the law of the jurisdiction where the Contractor

has its registered office.

  1. 2. All disputes related to the Assignment shall be settled by the competent court in the jurisdiction where the Contractor has its registered officialy

 

September 2016

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