1.1. All letters of engagement shall be exclusively consented to and executed by the private company with limited liability, De Gier Business Finance Law Advocatuur B.V. (hereinafter: DE GIER BFL) subject to the exclusion of the application of Sections 7:404 and 7:407(2) of the Dutch Civil Code. For various details see www.degierbfl.com. (Chamber of Commerce No. 3022 9046; VAT No. NL8183.32.645.B.01).
1.2. These general terms and conditions shall govern and constitute part of any agreement between DE GIER BFL and a client, as well as any contract arising pursuant to it and any additional legal act or other action undertaken by DE GIER BFL with, for or in relation to a client. Once these general terms and conditions are applicable, they shall also govern any new agreement and extra-contractual relations between the parties, in particular, tort, in the absence of any further declaration to the effect that they are applicable. Any agreement referred to in this clause shall also be deemed to include work which DE GIER BFL carries out for a client. Where a client constitutes part of a group of companies or businesses, it shall also be deemed to have consented to these terms and conditions on behalf of such other parts of the group.
2. The parties’ obligations
2.1. DE GIER BFL shall endeavour to execute an agreement with a client while exercising the requisite due care and expertise. DE GIER BFL shall not warrant that the envisaged outcome will be achieved.
2.2. A client shall have a duty to ensure the timely supply to DE GIER BFL of all facts and circumstances which may be of interest for the purposes of the appropriate execution of an agreement and any details and information which DE GIER BFL requires. A client shall warrant that any data or information provided to DE GIER BFL is accurate and complete.
3.1. As soon as a client discovers or ought to discover potential grounds for a well-funded claim against DE GIER BFL, that client shall have a duty to notify DE GIER BFL in writing of that alleged claim against the latter, supporting it with documents and properly substantiating it on pain of the lapse of any entitlement. Subject to the provisions of Section 6:89 of the Civil Code, entitlement to compensation from DE GIER BFL shall lapse one (1) year following the circumstances pursuant to which the claim for compensation for which DE GIER BFL is liable directly or indirectly arose. The circumstances referred to in the foregoing sentences include any omission.
3.2. DE GIER BFL’s professional liability is insured with the insurer, AON (www.aon.nl). Any liability on the part of DE GIER BFL shall be confined to the amount that is paid out pursuant to its professional liability insurance in the relevant situation in so far as DE GIER BFL is required to have it pursuant to compelling regulations of the Netherlands Bar Association plus the sum of any excess for which the relevant insurer is not liable in accordance with the terms and conditions of the policy in question. In the event that an insurer does not issue a payout for any reason whatsoever, any liability shall be confined to the amounts which the relevant client has actually paid DE GIER BFL during the calendar year concerned for the work which the latter has performed subject to a maximum of €10,000.00 (inclusive of VAT).
3.3. Under no circumstances shall DE GIER BFL be liable for any indirect or consequential loss, or any loss due to the disruption of business. DE GIER BFL’s liability shall never exceed what is stipulated in these general terms and conditions, irrespective of whether a claim arises pursuant to an agreement or on any other grounds, in particular, tort.
3.4. DE GIER BFL shall be at liberty to engage other parties (staff and/or other organisations and/or firms) for the purposes of implementing a letter of engagement, even by means of subcontracting. In the event that such other person or organisation is engaged and they wish to limit or have limited their liability in this respect, a client’s engagement of DE GIER BFL shall be deemed to confer the power to consent to such a limitation of liability on behalf of that client. In the absence of any special arrangements, such limitation shall also always apply where DE GIER BFL also consents to it on behalf of the relevant client.
4. Fees and financial obligations
4.1. DE GIER BFL shall charge a fee for its work, which shall be based on an hourly rate in principle. Arrangements shall be made concerning the amount of such fee – or other fee-related arrangements – before the relevant letter of engagement is implemented. Where this is not done, a rate of €350.00 per hour (2022 price, to be indexed annually) shall apply.
4.2. The fees of any external specialists (including contractors) shall be passed on with a margin of 17.5%. The margin shall be borne by the relevant external specialist, because DE GIER BFL will receive a discount on their fee from them which is equivalent to that percentage.
4.3. Any amounts shall be exclusive of VAT. DE GIER BFL shall be entitled to require payment in advance from a client for any costs that are to be incurred. The relevant rates shall be adjusted annually in accordance with cost price increases.
4.4. Any bill issued by DE GIER BFL must be paid within fourteen (14) days after the relevant invoice date. Where a client disputes the accuracy of a bill, they shall be required to give notice of this in writing by registered letter within fourteen (14) days, in the absence of which the relevant bill shall be deemed to have been accepted and it may no longer be disputed.
4.5. In the event that a client fails to meet a deadline for payment, they shall be in default by operation of the law and the default interest shall then be equal to the applicable interest legally stipulated pursuant to Section 6:119 of the Civil Code. In derogation from the foregoing, where a client acts for the purposes of conducting a business or practising a profession or trade, they shall be liable for any commercial interest pursuant to Section 6:119a of the Civil Code. A client shall not be entitled to setoff or suspension. The relevant client shall be liable for all judicial or extrajudicial costs incurred by DE GIER BFL for the purposes of collecting any accounts receivable subject to a minimum of 10% of the outstanding bills.
4.6. DE GIER BFL shall also be entitled to set off any conditional and/or reasonably foreseeable amount receivable from a client against whatever it owes or may reasonably be expected to owe that client. For the purposes of this clause ‘client’ shall be deemed to include a client’s group company and/or majority interest. In the event of a failure to effect timely payment of a bill, DE GIER BFL shall be entitled to suspend its work pursuant to the relevant letter of engagement that has been agreed to.
5.1. Both DE GIER BFL and a Client shall be entitled to cancel the relevant letter of engagement. In the event that a letter of engagement is terminated at the relevant client’s initiative or due to the latter’s involvement or lack of sufficient funds to proceed, they shall not affect DE GIER BFL’s entitlement to any success fee which may have been agreed to, even where the success defined in relation to that fee is achieved subsequently or through the efforts of anyone else (or primarily so).
5.2. DE GIER BFL’s activities are governed by the Legal Counsel Act [Advocatenwet]. The Bar Association oversees matters to ensure appropriate practice (www.advocatenorde.nl). Information may be found on the Bar Association’s website concerning the regulations which apply in relation to DE GIER BFL and where a client may submit a complaint about DE GIER BFL.
5.3. DE GIER BFL may not rely on all or part of these general terms and conditions in so far as it is not permitted to do so by the professional organisation. As the case may be, DE GIER BFL shall only exercise any rights it has pursuant to the general terms and conditions – in so far as this is stipulated – after receiving consent from the dean of the applicable supervisory council of the Netherlands Bar Association.
5.4. In the event that one (one) or more provisions of an agreement are fully or partially invalid or appear to be unenforceable, it or they shall be deemed to have been replaced now in lieu of then by a provision or provisions in respect of which this does not apply and which approximate the invalid or unenforceable provision(s) as far as possible. In so far as it may be necessary to do so, the parties shall consult each other in good faith concerning the precise wording of the provisions that are to replace them.
5.5. These general terms and conditions and any letter of engagement shall be solely governed by and construed in accordance with the law of the Netherlands to the exclusion of a client’s own procurement terms and conditions. Any dispute concerning agreement to or the implementation of a letter of engagement consented to by a client and DE GIER BFL shall be adjudicated by the Consumer Complaints Board for the Legal Profession. Where a dispute between the parties does not lend itself to being dealt with by the aforementioned board or which follows from the aforementioned board’s ruling or the way it has dealt with the matter, that dispute shall be adjudicated by a competent court of law in the district in which DE GIER BFL also has an office. Nevertheless, in the latter case DE GIER BFL shall be entitled to bring a dispute before a competent court of law in the place where the relevant client is resident or has their registered office.
5.6. In the event of a difference of interpretation on the part of the parties concerning the substance and/or meaning of these general terms and conditions, the Dutch version of these general terms and conditions shall prevail. These general terms and conditions may be consulted on the website of DE GIER BFL (www.degierbfl.com).
Utrecht, January 2022.