Drt & partners general terms and conditions
I. – SCOPE OF APPLICATION
These general terms and conditions apply to all professional relations between the professional practitioner and the client, whether or not laid down in a written assignment letter.
Variations should be expressly accepted in writing by both parties.
In the event of any contradiction between the contents of these general terms and conditions and the assignment letter, the assignment letter takes priority.
In accordance with common law, the liability of the professional practitioner can only be challenged for assignments that can be proved to have been accepted by him.
II. – ESTABLISHMENT OF THE AGREEMENTUnless otherwise stipulated in the assignment letter, the agreement comes into being and commences:
- either at the moment when the professional practitioner takes receipt of and signs the assignment letter signed by the client,
- or at the moment when the professional practitioner starts fulfilling the assignment at the request of the client, should this begin at an earlier point in time.
If the professional practitioner has yet not received the assignment letter signed by the client, all professional relations between the parties are, in any case, governed by these general terms and conditions and the assignment letter, as of the moment when and insofar as these contractual documents are passed on to the client either by letter, or by fax, or by electronic mail, or by being handed over in person in return for acknowledgement of receipt.
III. – DURATION AND TERMINATION OF THE AGREEMENT
3.1. Recurrent assignments
A “recurrent assignment” is understood to mean an assignment that consists of successive services of the same type that have to be carried out by specified, pre-determined deadlines.
3.1.2. Duration and termination of the agreement
Unless a deadline is indicated in the assignment letter, the recurrent assignment agreement is deemed to have been entered into for an indefinite period.
Both parties can terminate the agreement at any time, subject to the following terms and conditions:
- the other party should be notified of the termination by registered letter
- a period of notice of three months should be given.
This period of notice can, if the client prefers in cases where he gives notice, be replaced by a flat-rate summary termination penalty of 25 % of the fees corresponding to the services that were usually provided by the professional practitioner in relation to a complete financial year or, if necessary, calendar year.
During the period of notice, the instructions set out in the assignment letter and these general terms and conditions remain applicable in full.
A separate contract can be concluded for services to be provided after the termination of the agreement, but which relate to the period when the agreement was still in force.
3.2. Non-recurrent assignments
Assignments that are not covered by the definition laid down in point 3.1.1. are considered to be non-recurrent assignments.
3.2.2. Duration and termination of the agreement
Barring proof to the contrary, the agreement relating to a non-recurrent assignment is deemed to have been concluded for a specified period.
It ends with the fulfilment of the assignment and, if this is applicable given the nature of the assignment, with the provision of the agreed services.
In application of Article 1794 of the Civil Code and, if necessary, by way of derogation from Article 2004 of the Civil Code, the client is entitled to terminate the agreement prematurely subject to payment to the professional practitioner of:
- the costs and fees that correspond to the activities already carried out
- all that the professional practitioner could have earned with the fulfilment of the assignment.
This compensation is calculated on an actual basis, with a minimum of 25 % of the fees payable in the event of the total fulfilment of the assignment.
After the termination of the agreement, all books and documents belonging to the client will be made available to the client or his authorised representative.
IV. – IMMEDIATE TERMINATION FOR SPECIFIC REASON OR REASONS
4.1. In all cases, the professional practitioner can terminate the agreement at any time, without giving a period of notice or paying compensation, if there are reasons that render the continuation of the professional cooperation impossible, such as:
- circumstances that may jeopardise the independence of the professional practitioner
- circumstances that render the fulfilment of the assignment in accordance with professional and deontological standards impossible,
- the obvious shortcoming or shortcomings of the client in respect of his own undertakings, as described in these general terms and conditions (point 6.2.) and in the assignment letter
- in the event of composition, dissolution proceedings or the obvious insolvency of the client.
The client should be informed of the reasons justifying the immediate discontinuation of the agreement.
Depending on the circumstances, the professional practitioner can send a warning or a reminder to the client prior to his decision.
If he discontinues the agreement, the professional practitioner informs the client of the legal acts that must be taken urgently in order to safeguard his rights, and for which he had received the assignment.
4.2. In the event of the bankruptcy of the client, the agreement is dissolved ipso jure.
4.3. The client can discontinue the agreement at any time, without observing a period of notice and without paying compensation, if the professional practitioner obviously fails to fulfil his own undertakings, as described in these general terms and conditions (point 6.1.) and, if appropriate, in the assignment letter.
He will in any case send written notice of default to the professional practitioner prior to his decision.
V. – SUSPENSION OF THE FULFILMENT OF THE UNDERTAKINGS
In the event of non-compliance, improper or belated fulfilment by the client of his undertaking or undertakings, for example in the event of non-payment of fees or of an advance or advances in accordance with Article 7 below, the professional practitioner is entitled to suspend or defer the fulfilment of his obligations until the client has fulfilled his obligations.
The professional practitioner informs the client of this in writing.
If, after the start of the suspension or deferral of the fulfilment, legal acts have to be taken urgently to safeguard the rights of the client, for which the professional practitioner had received an assignment, he will inform the client of this.
All costs and charges resulting from the suspension or the deferral will be borne by the client.
The professional practitioner is entitled under all circumstances to payment of the fees and costs relating to activities already carried out.
VI. – RIGHTS AND DUTIES OF THE PARTIES
6.1. Rights and duties of the professional practitioner
The professional practitioner fulfils the assignments entrusted to him in total independence as a best-effort undertaking.
He ensures that the services are provided in accordance with the deontological and other professional standards of the Institute, taking into account the relevant legislation and regulations in force at the time of the fulfilment of the agreement.
The professional practitioner may not, under any circumstances, be held liable for the consequences of possible later modifications – if necessary with backdated effect – to these legal and statutory provisions.
Nor is he responsible for the consequences of any shortcomings, errors or infringements which may be committed before his intervention.
The fulfilment of the assignment is not – unless otherwise stipulated – specifically targeted at detecting fraud.
Unless otherwise stipulated, the professional practitioner is not obliged to check the accuracy and completeness of the information that the client or his agent or agents pass on to him, or the reliability of the deeds, contracts, inventories, invoices and supporting documents of all types, entrusted to him by the client or presented as being documents with evidential value or documents that are to serve as such.
The professional practitioner may be assisted by colleagues or experts of his choice and have the assignments resulting from the agreement fulfilled entirely or partially by an agent or agents or by an expert or experts.
In accordance with Article 33 of the law of 22 April 1999 on the accounting and fiscal professions, the professional practitioner has had his civil liability insured with a policy that is approved by the Board of the Institute of Accountants and Tax Consultants.
The professional practitioner, as well as his authorised representative or representatives or his agent or agents, are bound by a duty of professional confidentiality in accordance with Article 58 of the law of 22 April 1999 on the accounting and fiscal professions and Article 32 of the Royal Decree of 1 March 1998 establishing the regulations on ethics of accountants, subject, however, to the provisions of the legislation and regulations on the prevent of the use of the financial system for the purpose of money laundering and the financing of terrorism.
6.2. Rights and duties of the clientThe client undertakes to:
- provide the professional practitioner in time with all documents, data and information that are necessary for the fulfilment of the assignment;
- carry out the activities which may fall to him on the basis of the assignment letter;
- inform the professional practitioner of any information, any event or any development that could have any impact on the fulfilment of the assignment;
- if the professional practitioner so requests, confirm in writing that the documents, information and explanations provided are accurate and complete;
- check whether the documents and statements supplied by the professional practitioner correspond to his expectations and to the information provided by him, and if this is not the case, inform him of this without delay.
6.3. Ban on poaching
The client and the professional practitioner expressly undertake, throughout the period covered by the agreement and for a period of twelve months after the termination thereof, irrespective of the reason for the termination, not to take into service directly or indirectly any member of staff or self-employed worker of the other party, involved in the fulfilment of the agreement, or to have him or her carry out activities directly or indirectly (for example via a legal entity) outside the context of an agreement between the client and the professional practitioner, without the prior, written consent of the other party.
Any infringement of this ban will give rise to one-off, fixed compensation of EUR 25,000.
VII. – FEES
7.1. Determining the costs and fees
The costs and fees are established in accordance with the valid legal and statutory provisions, applicable to the professional practitioner and laid down in the assignment letter, of which these general terms and conditions form an integral part.
The costs and fees are payable as the activities on behalf of the client are carried out, even if the assignment is not necessarily terminated.
7.2. Terms and conditions of payment
Invoices and/or fee notes are payable within 30 days of the day of invoicing.
Late payment gives rise, ipso jure and without the requirement of formal notice, to:
- interest equal to that specified in Article 5 of the law on the fight against arrears of payment of 2 August 2002,
- standard compensation, the amount of which is set on a fixed basis at 10 % of the unpaid amounts with a minimum of EUR 250.
The professional practitioner may request one or more advances. These advances are then deducted from the final statement of costs and fees.
7.4. Challenging the statement of costs and fees
All challenges to costs and fees should be sent to the professional practitioner, stating the reasons, within 15 days of the date of invoicing. If no challenge reaches the professional practitioner (on time), then it is assumed that the client agrees to the invoiced services.
VIII. – LIABILITY
Barring the assignments referred to in Article 17, paragraph 4, of the law establishing an Institute of Company Auditors and the organisation of public supervision of the profession of company auditor, coordinated on 30 April 2007, the total (contractual, extra-contractual or other) liability for the fulfilment of the assignment is limited to the amount or amounts covered by the professional liability insurance taken out by the professional practitioner, including the own risk that the professional practitioner may bear in accordance with this insurance policy.
If, for any reason whatsoever, the liability insurer does not pay out insurance, all liability is limited to once the amount of the fees invoiced for the fulfilment of the assignment. If a recurrent assignment is involved, this coefficient is applied to the amount of the fees invoiced to the client during the twelve months prior to the event giving rise to the loss or as of the start of the fulfilment of the assignment if this period is shorter than one year.
These restrictions also apply to all claims further to the fulfilment of the assignment, which may be made against all persons, partners, directors and/or self-employed workers with the capacity of insured party within the meaning of the insurance contract in question.
They do not apply when the liability is the consequence of an error committed with fraudulent intent or with a view to causing loss. Consequently, this restriction applies expressly to any liability resulting from all other errors for which the professional practitioner, his partners, directors and/or self-employed workers may be liable.
They do not apply when the liability is the consequence of an error on the part of the professional practitioner, committed with fraudulent intent or with a view to causing loss.
Should it appear that two or more losses result from one and the same error, they are considered to constitute a single case of liability and the liability is therefore restricted to the highest of the amounts that apply to the assignments or agreements concerned.
Barring an imperative legal provision to the contrary, the loss resulting from (a) a loss of profit, goodwill, business opportunities or expected savings or benefits, (b) the loss or damage of data, or (c) indirect loss or damage, does not, under any circumstances, give the right to compensation.
IX. - APPLICABLE LAW AND DISPUTE RESOLUTION
The interpretation and the fulfilment of the agreement are governed by Belgian law.
Any dispute of any nature whatsoever falls under the jurisdiction of the courts and tribunals of the legal district in which the office of the professional practitioner is located.
Disputes relating to costs and fees may be brought before the Arbitration Board of the Institute of Accountants and Tax Consultants, which expresses a definitive decision, in first and last instance, and without procedural costs.