Terms and Conditions
I – SCOPE
1.1. These general terms and conditions apply to all contractual relations between
Van Havermaet NV, with registered office at 3500 Hasselt, Diepenbekerweg 65, with company registration number 0428.179.774, RPR Antwerp, Hasselt division, as well as all its affiliated companies within the meaning of article 1:20 of the Companies and Associations Code, (hereinafter “Van Havermaet”) and the Client.
1.2. In these General Terms and Conditions, “Client” means (i) a company as defined in Art. I.1.1) WER (“Client”) with whom Van Havermaet intends to enter into or has entered into an agreement, or to whom Van Havermaet provides services.
1.3. These general terms and conditions apply to all activities and invoices from Van Havermaet to the Client and to all agreements between Van Havermaet and the Client. These terms and conditions form an integral part of the agreement with the Client. They may be deviated from only with the express written agreement of both parties.
1.4. The Client’s (purchase) terms and conditions shall only apply if they are expressly confirmed in special terms and conditions by both parties in writing prior to the execution of the order or agreement. The application of the following general terms and conditions is for Van Havermaet an essential condition for the conclusion of the agreement.
1.5. Prior to the conclusion of an agreement, the Client declares to have received these general terms and conditions and to have been able to take note of their content.
Van Havermaet requests the Client to accept them prior to the conclusion of the agreement by signature of the offer, confirmation by e-mail or any other express written means. In accordance with Belgian law, acceptance of the invoice also implies acceptance of these general terms and conditions.
1.6. If one or more provisions of these general terms and conditions are wholly or partially excessive or null and void or should be annulled, this shall not entail the nullity of the remaining general terms and conditions. The parties undertake to replace the void clause by a legally valid clause, which will correspond to the original intention of the parties, or as closely as possible.
1.7. Van Havermaet and the Client may, in addition to these general terms and conditions, make further special agreements governing the relationship between the parties. These are only valid and can only prevail over these general conditions if they have been expressly concluded in writing.
1.8. Van Havermaet reserves the right to modify or amend its terms and conditions at any time. These conditions shall only apply as soon as the Client has effectively taken note of them and expressly agreed to them.
1.9. This Dutch language version of the general terms and conditions is the original version and in case of discrepancies shall always take precedence over any translation communicated for informational purposes.
1.10. The Client may transfer its agreement(s) with Van Havermaet or any rights or obligations arising therefrom to third parties only with the prior written consent of Van Havermaet.
II – CONCLUSION OF THE AGREEMENT
2.1. Unless otherwise stipulated in the assignment letter/agreement, the agreement shall be established and commence:
- either at the time when the assignment letter/agreement transmitted to the Client, as well as these general terms and conditions, are signed and received by both parties,
- either at the time Van Havermaet commences performance of the order at the Client’s request, if such commencement were to take place at an earlier time;
On the understanding that Van Havermaet is only permitted to provide services to customers for whom the client acceptance procedure (CAP) under anti-money laundering obligations has been successfully completed. Accordingly, no agreement can arise with clients who have not or not fully completed the CAP.
2.2. If Van Havermaet has not yet received the general terms and conditions and assignment letter/agreement signed by the Client, all professional relations between the parties shall in any event be governed by these general terms and conditions and the assignment letter/agreement, from the time and insofar as these documents have been transmitted to the Client either by letter, email or in person and at least a tacit acceptance can be inferred from the Client’s actions.
III. – DURATION AND TERMINATION OF THE AGREEMENT
3.1. Recurring assignments
3.1.1. Definition
“Recurring assignment” means the assignment consisting of successive services of the same nature to be performed at certain deadlines known in advance, with the exception of commissioner mandates as defined in 3.2.1..
3.1.2. Duration and end of assignment
Unless a term is specified in the engagement letter/agreement, the contract for recurring assignment is deemed to have been entered into for an indefinite term.
Either party may terminate the agreement at any time under the following conditions:
-the termination must be sent by registered letter to the address of the other party’s headquarters,
-a notice period of one month must be observed, unless the parties have expressly agreed otherwise. The notice period will begin on the first day of the month following the month in which the notice was given. This period may, at the discretion of the Client if he gives notice, be replaced by a lump-sum indemnity of 10% of the fees corresponding to the services provided by Van Havermaet during the entire preceding business year or calendar year, as the case may be.
During the notice period, the provisions of the assignment letter/agreement and these general terms and conditions shall remain in full force and effect.
3.2. Auditor mandates (statutory audit of financial statements)
3.2.1. Definition
As provided in Article 3:55 of the Companies and Associations Code, “statutory audit of financial statements” means an audit of the statutory financial statements or the consolidated financial statements, to the extent such audit:
1° prescribed by the law of the European Union;
2° prescribed by Belgian law with respect to small companies;
3° carried out on a voluntary basis at the request of small companies, when this assignment is accompanied by the publication of the report referred to in Article 3:74 or 3:80.
3.2.2. Duration and end of assignment
A commissioner’s mandate is taken up for three years. This term is renewable except in the exceptional cases provided for by law.
During her assignment as statutory auditor, Van Havermaet can only be terminated for lawful reasons by the annual meeting of the Client, under penalty of damages.
If the annual meeting should pronounce on such termination of Van Havermaet, the Client must comply with all legal obligations in this regard.
If Van Havermaet reasonably considers that the performance of the agreed work, or any part thereof, has or could have the effect of violating a legal, regulatory or deontological norm or a requirement of independence, it may terminate the collaboration at any time and with immediate effect, provided that it notifies the Client in writing. Moreover, Van Havermaet may terminate the cooperation for other reasons after informing the Client in writing of the reasons for the termination of the cooperation.
3.3. Non-recurring assignments
3.3.1. Definition
Contracts that do not fall within the definitions provided in Section 3.1.1. or in Section 3.2.1. are considered non-recurring contracts.
3.3.2. Duration and end of assignment
Barring evidence to the contrary, the agreement relating to a non-recurring assignment shall be deemed to have been concluded for a definite term.
It ends by the execution of the order and, if applicable given the nature of the order, by the delivery of the agreed performance.
In application of art. 1794 Old Civil Code if there is a question of contracting, and, if applicable, in deviation from art. 2004 Old Civil Code if there is a question of mandate, the Client has the right to terminate the contract early upon payment to Van Havermaet of:
-the costs and fees corresponding to the work already performed,
-everything the professional could have gained in the performance of the assignment.
This indemnity shall be calculated on an actual basis, with a minimum of 30% of the fees that would have been due in case of full execution of the assignment.
3.4. Handling
After the termination of the agreement, all books and records belonging to the Client shall be made available to the Client or his agent as soon as possible
IV – IMMEDIATE TERMINATION FOR CAUSE(S)
4.1. In all cases, except those mentioned in 3.2., the parties may terminate the cooperation at any time, without notice and without compensation, in case of serious contractual breach by the other party or if there are reasons that make the continuation of the professional cooperation impossible, such as, among others:
-conditions that compromise the practitioner’s independence,
-circumstances rendering the performance of the assignment in accordance with professional and deontological standards impossible, in the event that serious indications of any form of fraud and/or deceit were to manifest themselves.
The reasons justifying the immediate cessation of cooperation will be communicated in writing to the Client as soon as possible.
Depending on the circumstances, Van Havermaet may have its decision preceded by a warning or a reminder to the Client.
When Van Havermaet discontinues the cooperation, it draws the Client’s attention to the legal actions that must be urgently and necessarily taken to safeguard its rights, and for which Van Havermaet had been instructed.
4.2. Each party may, without compliance with a notice period and without payment of compensation, terminate the cooperation if the other party manifestly fails to perform its own commitments, as defined in the present general terms and conditions (points 6.1. and 6.2. respectively) and, where applicable, in the assignment letter/contract.
However, this shall only be possible if, prior to such discontinuance, one party has given the defaulting party a notice of default by registered letter to still fulfill its commitments and has granted the latter party a period of at least eight (8) calendar days to do so.
4.3. The agreement between the parties may be dissolved by Van Havermaet at the Client’s expense in the event that the Client is in suspension of payments, is in a state of bankruptcy, applies for judicial or amicable settlement, ceases all or part of its business activity or proceeds to liquidation. All invoices, including those not yet due at that time, shall become immediately due and payable. All this is without prejudice to Van Havermaet’s right to prove and obtain compensation for higher damages.
The agreement between the parties may be terminated by Van Havermaet at the Client’s expense in the event of a change in the Client’s condition, such as death, disqualification, imprisonment or any other restriction of capacity; cognizance of a ban on management within the Client’s company, in the event of a change of control in the Client’s structure, in the event that the Client fails to meet one or more of his obligations, as well as in the event that his assets are seized in whole or in part. All invoices, including those not yet due at that time, shall become immediately due and payable. All this is without prejudice to Van Havermaet’s right to prove and obtain compensation for higher damages.
The agreement shall then be terminated on the date of sending of a registered letter addressed by Van Havermaet to the Client for that purpose.
4.4. In the contractual relationship between Van Havermaet and the Client, the application of Article 5.90, paragraph 2 of the Civil Code is excluded.
V – SUSPENSION OF PERFORMANCE OF SERVICES
5.1. In the event of non-performance, incorrect or untimely performance by the Client of his obligation(s), for example in the event of non-payment of fees or advance payment(s) in accordance with Article 7 below, Van Havermaet shall be entitled to suspend or postpone the performance of its obligations until the Client has fulfilled his obligations.
Van Havermaet will notify the Client in writing.
5.2. If, after the commencement of the suspension or postponement of performance, legal actions must be taken urgently and necessarily to safeguard the Client’s rights, and for which Van Havermaet had been instructed, it shall point this out to the Client.
5.3. All costs, charges and penalties resulting from the suspension or postponement shall be borne by the Client. The Client can never claim any compensation from Van Havermaet in this regard.
5.4. Van Havermaet is in all circumstances entitled to payment of the fees and costs related to the work already performed.
VI – RIGHTS AND OBLIGATIONS OF THE PARTIES
6.1. Rights and obligations of Van Havermaet
Van Havermaet performs with due care the assignments entrusted to it in complete independence, pursuant to an obligation of means.
It ensures that the services performed are provided in accordance with the deontological and other professional standards applicable, taking into account the relevant legislation and regulations in force at the time of the execution of the contract.
Under no circumstances can it be held liable for the consequences of any subsequent amendments – retroactive, if any – to these legal and regulatory provisions.
Nor is it responsible for consequences of any deficiencies, errors or violations allegedly committed prior to its intervention.
Unless expressly stipulated otherwise in writing, the execution of the assignment is not specifically aimed at detecting possible fraud. Unless expressly stipulated otherwise in writing, Van Havermaet shall not be obliged to verify the accuracy and completeness of the information transmitted to it by the Client or its appointee(s), nor to verify as such the reliability of the deeds, contracts, inventories, invoices and supporting documents of any kind entrusted or submitted to it by the Client as having probative value.
Van Havermaet may be assisted by employees or experts of its choice and have the assignments arising from the engagement letter/agreement performed in whole or in part by (an) appointee(s) or expert(s).
In accordance with Article 33 of the Law dated April 22, 1999 relating to the accounting and tax professions, Van Havermaet has had its relevant civil professional liability insured with a policy approved by the Council of the Institute of Accountants and Tax Consultants.
In accordance with Article 24 of the Law dated December 7, 2016 organizing the profession of and public supervision of auditors, Van Havermaet has had its relevant civil professional liability insured with a policy in accordance with applicable scales.
Van Havermaet, as well as its authorized representative(s) or appointee(s), are bound to professional secrecy in the cases provided for by law, in accordance with Article 58 of the Law d. April 22, 1999 relating to the accounting and tax professions and Article 32 of the Royal Decree of March 1, 1998 establishing the regulations on the ethics of accountants as well as in accordance with Article 86 of the Law d.d. December 7, 2016 organizing the profession of and public supervision of auditors, subject, however, to the application of the provisions of the legislation and regulations preventing the use of the financial system for money laundering and terrorist financing.
6.2. Rights and obligations of the Client
The Client commits to it:
– Van Havermaet to provide all documents, data and information necessary for the performance of the assignment in a timely manner;
– perform the work to which he is entitled under the assignment letter/agreement, if any;
– any fact, event or development that could have any influence on the performance of the assignment to Van Havermaet;
– if requested by Van Havermaet, to confirm in writing that the documents, information and explanations provided are correct and complete;
– verify that the documents and statements delivered by Van Havermaet correspond to his expectations and to the information provided by him, and if this is not the case, to inform Van Havermaet of this without delay.
6.3. Prohibition of recruitment
The Client and Van Havermaet expressly undertake, throughout the duration of the collaboration and for a period of 12 months following its termination, regardless of the reason for termination, not to directly or indirectly employ any staff member or self-employed employee of the other party involved in the performance of the assignment, or to directly or indirectly (e.g., through a legal entity) have him/her perform work outside the framework of an assignment letter/agreement between the Client and Van Havermaet, except with the prior written consent of the other party.
VII. – FEES
7.1. Determination of costs and fees.
The costs and fees are determined in accordance with the applicable legal and regulatory provisions, applicable to Van Havermaet and provided for in the assignment letter/agreement, of which these general terms and conditions form an integral part.
Costs and fees are payable as work is performed on behalf of the Client, even if the assignment is not necessarily terminated.
Moreover, Van Havermaet will be entitled to charge additional costs to the Client if, due to applicable legal and regulatory provisions, it is required to make reports to the appropriate bodies (a.o. in respect of reportable cross-border constructions).
7.2. Payment terms
Invoices and/or fee notes are payable within thirty (30) days of receipt of the invoice, unless otherwise expressly agreed between the parties.
Late payments by the Client shall give rise by operation of law and without notice of default:
-a lump sum compensation of 10% on the principal amount of the relevant invoice, with a minimum of EUR 250.00 per invoice;
-an interest compensation of 10% per annum on the principal amount concerned, it being understood that the applicable interest rate can never be lower than the interest rate applicable at that time on the basis of the Law of August 2, 2002 on combating late payment in commercial transactions, and this from the due date of the invoice.
All this is without prejudice to Van Havermaet’s right to demonstrate and seek higher damages.
In all cases, the Client remains jointly and severally liable for the payment of Van Havermaet’s invoices, even if Van Havermaet has accepted to draw up the invoices in the name of third parties.
7.3. Advances
Van Havermaet may request one or more advances. These advances are then deducted from the final statement of expenses and fees.
7.4. Contestation of statement of costs and fees.
All disputes regarding costs and fees must be formulated by registered letter to the registered office of Van Havermaet within 10 days of the invoice date, stating reasons.
7.5. Late payment
In the event of non-payment of an invoice, all outstanding, even non-matured, invoices become due and payable by operation of law and without notice of default.
In case of late payment of an invoice, Van Havermaet reserves the right to stop the service immediately and to resume it only after payment of all outstanding and due invoices. It may also refuse new orders.
The Client shall not be permitted to set off any claim it has against Van Havermaet against the claims Van Havermaet has against the Client, unless Van Havermaet has given its express prior consent.
VIII. – DATA PROTECTION
Van Havermaet may process personal data in the course of providing services to the Client. It undertakes to protect, process and retain the personal data to the best of its ability in accordance with applicable data protection legislation, including the General Data Protection Regulation 2016/679 (hereinafter “GDPR”) and applicable national legislation supplementing or implementing the GDPR, and to ensure that its staff, agents, representatives and subcontractors also comply with such legislation.
In certain cases, Van Havermaet may act as a data controller. This is the case, among others, when it is entrusted with the following tasks: performing advisory work, tax consultancy and audit work. In this case, Van Havermaet will process personal data in accordance with its Privacy Policy (https://vanhavermaet.be/privacy-policy/) which contains more information on the processing and protection of personal data by Van Havermaet. The Privacy Policy forms an integral part of the agreement between the parties. The Client shall make the Privacy Policy available to the persons whose personal data it provides to Van Havermaet.
The parties acknowledge that Van Havermaet may also act as a processor in the performance of the agreement. This is the case, for example, when Van Havermaet is in charge of accounting processing, preparation and filing of periodic VAT returns, preparation and filing of annual VAT listing and payroll processing. In this case, the processor agreement, as added in Appendix 1 of the assignment letter/agreement, applies.
The Client undertakes to comply with applicable data protection legislation and expressly confirms that it has collected the personal data it transfers to Van Havermaet in accordance with the GDPR. The Client shall indemnify Van Havermaet for any claim resulting from a breach of this undertaking by a data subject whose data were transferred to, collected and/or processed by Van Havermaet.
For more information about Van Havermaet’s processing of personal data, the Client may contact Van Havermaet at the following e-mail address: privacy@vanhavermaet.be
IX – LIABILITY
9.1. Van Havermaet shall not be liable for damages of any kind, except for direct damages caused by its own intent or gross negligence or that of its appointees, unless the parties expressly agree otherwise in writing.
9.2. The Client undertakes not to invoke at any time the liability of the directors of Van Havermaet or its independent service providers.
9.3. Except for the assignments referred to in Article 24 § 3 of the Law of December 7, 2016 organizing the profession of and the public supervision of auditors, the entire liability (contractual, extra-contractual or other) for the performance of the assignment shall be limited to the amount or amounts to which the professional liability insurance taken out by Van Havermaet entitles it to, including any excess borne by Van Havermaet in accordance with that insurance.
If, for whatever reason, the liability insurer does not pay out, all liability shall in any event be limited to the amount agreed between the parties for the assignment in question or, if no amount has been agreed, twice the amount of the (outstanding) fees paid and invoiced for the performance of the assignment. If it concerns a recurrent assignment, this coefficient shall be applied to the amount of the fees invoiced to the Client during the twelve months preceding the harmful event, or from the beginning of the execution of the assignment if this period is less than one year.
9.4. These limitations shall also apply to all claims arising from the performance of the assignment, which would be directed against all persons, shareholders, directors and/or self-employed employees, who have the capacity of an insured within the meaning of the relevant insurance contract.
Should it appear that two or more claims arise from one and the same fault, they will be considered as a single liability case and liability will therefore be limited to the highest amount of the amounts applicable to the contracts in question.
Except as otherwise provided by mandatory law, indirect damages, including those resulting from (a) a loss of income, goodwill, business opportunities or anticipated savings or benefits, (b) the loss or corruption of data, or from (c) indirect loss or damage, shall in no event entitle you to indemnification.
9.5. Van Havermaet enters into an obligation of best efforts when performing its work.
9.6. Van Havermaet cannot be held liable for, nor can Van Havermaet be held liable for any cost related to a false, incorrect or incomplete statement of figures or other information by the Client or its appointees.
Van Havermaet can also not be held liable for any damage if the instructions communicated by it are not respected by the Client or if there is a wrong use by the Client of the documents prepared by Van Havermaet in the framework of the assignment.
9.7. The Client indemnifies Van Havermaet for all damage to its image, direct or indirect, which it may suffer as a result of acts or omissions by the Client.
9.8. The Client shall indemnify Van Havermaet against all claims by third parties who may suffer damage in connection with the performance of the agreement, the cause of which is not attributable to Van Havermaet. If third parties bring legal actions against Van Havermaet, the Client shall be required to assist Van Havermaet both extra-judicially and judicially and to do immediately all that may be expected of it. Should the Client fail to take adequate measures, Van Havermaet shall be entitled, without notice of default, to take such measures itself. All costs and damages incurred by Van Havermaet and third parties as a result shall be entirely for the account and risk of the Client.
X.- FORCE MAJEURE AND HARSHIP
10.1. Van Havermaet shall not be liable in situations of force majeure (such as, for example, war, strike, lock-out, energy failures, theft, fire, epidemic or pandemic, restrictions imposed by the government, logistical problems at third parties, as well as all other causes beyond Van Havermaet’s control) which could lead to Van Havermaet being in the absolute impossibility of fulfilling (in a timely manner) its obligations. Van Havermaet’s obligations shall be suspended for the duration of the force majeure. With the exception of the orders mentioned in Article 3.2, Van Havermaet may dissolve the agreement without being liable for any compensation if the force majeure situation lasts longer than 30 working days.
10.2. In case of changed circumstances, Van Havermaet may request a renegotiation of the agreement or order for a maximum period of 14 calendar days if i) the changed circumstances excessively interfere with the performance of the agreement, in the sense that normal performance thereof can no longer reasonably be required, ii) the change was unforeseeable at the time of contract conclusion, iii) the change is imputable to the debtor, iv) the debtor has not assumed the risk and v) the law does not exclude this possibility. Changed circumstances include, inter alia, a change in legislation or established case law, an increase in fuel prices, an increase in labor costs, an increase in energy prices, …. During the renegotiation period, the commitments of each of the parties will be suspended.
XI.- APPLICABLE LAW AND DISPUTE RESOLUTION
11.1. The interpretation and execution of the assignment shall be governed by Belgian law.
Any dispute of any kind falls under the exclusive jurisdiction of the courts and tribunals belonging to the judicial district of Antwerp, Hasselt Division.
However, the Client always has the right to bring his claim before the court of his domicile.
11.2. Disputes regarding costs and fees of accountants-tax consultants may, with the agreement of both parties, be submitted to the Arbitration Board at the Institute of Accountants and Tax Consultants, which shall issue a final decision, rendered in first and last instance and without procedural costs.