DKF - General terms and conditions
I. Scope
Unless otherwise agreed in writing, these general terms and conditions are applicable to all professional relations between the professional (hereinafter referred to as DKF) and the client. In case of contradictions between the content of these general terms and conditions and the assignment letter, the latter takes precedence.
These general terms and conditions apply even if DKF has not yet received a signed assignment letter from the client.
II. Effective date of the contract
The contract takes effect on the first of the following dates:
- the date on which DKF receives the assignment letter signed by the client and cosigns it, or;
- the date on which DKF starts the performance of the assignment.
Contracts are concluded by the competent corporate body of DKF or by an authorised agent designated by this corporate body.
III. Term and termination of the contract
III.1. Recurring assignments
III.1.1. Definition
Assignment consisting of consecutive services of the same nature.
III.1.2. Term and termination
A contract for recurring assignments is entered into for an indefinite period of time.
Both parties can terminate the contract at any time by means of a registered letter subject to:
- three months’ notice starting on the third working day following the date on which the notice of termination is sent, or;
- a compensation equalling 25% of the fees corresponding to the services usually provided by DKF during an entire financial year or calendar year.
During the notice period the contractual provisions of the assignment letter and of these general terms and conditions remain in full force and effect. A separate contract may be concluded for services provided after the termination of the contract but relating to the period in which the contract was still in force.
III.2. Non-recurring assignments
III.2.1. Definition
Assignments not falling within the scope of the definition contained in III.1.1.
III.2.2. Term and termination
Unless proof to the contrary is provided, contracts relating to non-recurring assignments are entered into for a definite period of time.
These contracts end when the assignment is completed and, if applicable, the agreed services are provided. In accordance with article 1794 of the Belgian Civil Code and, as the case may be, by way of derogation from article 2004 of the Belgian Civil Code, the client is entitled to early termination of the contract, subject to payment to DKF of:
- The costs and fees corresponding to the work already performed, and;
- Any gains DKF may have achieved upon completion of the assignment.
This compensation is calculated on an actual basis and equals, as a minimum, 25% of the fees that would have been payable if the assignment had been completed.
III.3. Procedure after termination
After the termination of the contract, all books and documents belonging to the client will be put at the disposal of the client or their authorised agent in the offices of DKF.
IV. Immediate termination
IV.1.
DKF can terminate the contract at any time, without prior notice and without any compensation, if there are reasons that make the continuation of the professional cooperation impossible, including:
- Circumstances jeopardising the independence of DKF;
- Circumstances that make the performance of the assignment in accordance with the professional and ethical standards impossible;
- Any apparent non-compliance by the client with their own obligations as described in these general terms and conditions (e.g. VI.3. and VII.3.) and in the assignment letter.
The reasons justifying the immediate termination of the contract are to be communicated to the client. Depending on the circumstances, DKF can, before taking a decision, issue a warning or a reminder no later than 10 days following the incident.
If DKF terminates the agreement, they inform the client of the legal acts that are urgent and necessary in order to safeguard their rights and that are included in their assignment.
IV.2.
In case of liquidation, bankruptcy or financial insolvency of the client, the contract is dissolved automatically.
IV.3.
The client can at all times, without having to observe a notice period and without having to pay a compensation, terminate the contract if DKF fails to fulfil their own obligations described in these general terms and conditions (VI.2) and in the assignment letter, as the case may be, including after a period of 10 days has passed since having received a written reminder.
The replacement of the person responsible for the performance of the assignment can in no event be invoked by the client as a valid ground for this termination of the contract.
V. Suspension of the performance of obligations
In case of non-performance, or of improper or late performance by the client of their obligation(s), for example in case of non-payment of fees or advance(s) in accordance with VII., DKF is entitled, without prejudice to the possible application of IV., by operation of law and without notice of default, to suspend or postpone the performance of their obligations until the client has complied with their obligations. In this event, DKF shall inform the client in writing. DKF is in any event entitled to payment for the work already performed and for all costs resulting from the suspension. DKF cannot be held liable for any consequences of the above-mentioned suspension.
The suspension of or delay in the performance of obligations by DKF does not affect the right to immediate termination of the contract by DKF in the cases referred to in article IV. of these general terms and conditions.
VI. Rights and obligations of the parties
VI.1. Rights and obligations of the parties
All information (both personal data and corporate information) acquired by one of the parties during or as a result of the performance of the assignment entrusted to DKF shall be regarded as strictly confidential and shall not be disclosed to third parties without the prior written and explicit consent of the other party, except in the normal course of the performance of the assignment or in compliance with legal obligations. This is also true for quotations issued in preparation of assignments and for reports resulting from their performance.
VI.2. Rights and obligations of DKF
DKF performs the assignments entrusted to them with due diligence and independently on the basis of a best-efforts obligation. DKF shall ensure that the services are provided in accordance with the ethical and other professional standards of the Institute, taking into account the relevant laws and regulations in force at the moment of the performance of the contract.
DKF can in no event be held liable for the consequences of possible subsequent changes - possibly with retroactive effect - to these laws and regulations. Furthermore, DKF cannot be held liable for the consequences of any shortcomings, errors or violations that occurred before or after their intervention. Unless stipulated otherwise, the performance of the assignment is not specifically aimed at discovering fraud. Unless stipulated otherwise, DKF does not have the obligation to check the accurateness and completeness of the information provided by the client or the client’s representative(s), nor the reliability of legal instruments, contracts, inventories, invoices and supporting documents of any kind entrusted to them by the client or presented as conclusive documents or documents serving as such.
DKF may be assisted by employees or experts of their choice and have the assignments resulting from the contract performed in whole or in part by one or several service providers or experts.
DKF is authorised to put the information and documents they received from the client at the disposal of these service providers or external experts.
The recovery of damages caused by the non-performance of a contractual obligation by DKF or a person assisting DKF shall, within the legal limits, give rise only to a contractual liability claim against DKF. No non-contractual liability claim can be raised against DKF, their staff, directors and other service providers or subcontractors, not even if the cause of the damage can be regarded as a tort.
In accordance with the provisions of article 33 of the Act of 22 April 1999 relating to the accounting and tax professions, DKF has had their civil liability insured with a policy approved by the Board of the Institute for Tax Advisors and Accountants. The client considers this insurance of DKF sufficient and accepts that the compensation for damage suffered as a result of a (even gross) professional misconduct of DKF and/or their representatives is limited to the amount for which DKF is insured. This limitation does not apply in case of intent.
If the professional liability insurer does not cover the damage, without DKF and/or their representatives being at fault, the liability of DKF and their representatives, both contractual and non-contractual, will be limited, as regards the principal amount as well as any costs and interests, to the amount excluding VAT that was charged in the file with respect to which the liability claim is raised, and in the absence of such a file, to a maximum of € 7,500.00 per claim. These limitations also apply to all claims resulting from the performance of the assignment, which may be filed against any persons, partners, directors, ad/or independent workers who have the capacity of insured party within the meaning of the relevant insurance contract.
DKF can under no circumstances be held liable for indirect damage, consequential damage, loss of use or loss of profits suffered by the client or by third parties.
Without prejudice to the foregoing, DKF cannot be held liable for any shortcomings of third parties called upon to provide services if these services are ordered on behalf and for the account of the client. In such an event, DKF can therefore not be held responsible jointly or severally with this third party for payment of any compensation to the client.
If two or more claims result from the same shortcoming on the part of DKF, these claims will be deemed to constitute a single case of liability, and DKF's liability will consequently be limited to the highest amount applicable to the relevant assignments or contracts.
Unless otherwise provided by law, any legal action based on or related to this contract may only be validly brought before a court against DKF within three years from the act or omission invoked against DKF.
Although DKF makes reasonable efforts to protect their emails and the attachments thereto against viruses or other defects that may affect computers or an IT system, the client is responsible for ensuring that appropriate measures are taken to protect the client’s computers and IT system against such viruses or defects. DKF does not accept any liability for any loss or damage resulting from the receipt or use of electronic communication originating from DKF.
DKF as well as their authorised agents or representatives are bound by professional secrecy in accordance with article 58 of the Act of 22 April 1999 relating to the accounting and tax professions and article 32 of the Royal Decree of 1 March 1998 laying down the rules of professional conduct for chartered accountants, without prejudice to the provisions of the legislation and regulations relating to the prevention of the use of the financial system for the purposes of money laundering and terrorist financing and the obligations under the legislation relating to the continuity of enterprises according to which DKF is obliged to pay attention to any facts that may lead to the conclusion that the continuity of your enterprise is jeopardised.
Pursuant to common law principles, DKF can only be held liable for assignments which have demonstrably been accepted by DKF.
VI.3. Rights and obligations of the client
The client undertakes:
- To provide DKF in time with all documents, data and information needed for the assignment;
- To perform the actions for which the client is responsible on the basis of the assignment letter;
- To inform DKF of any fact, any event or any development that may impact the performance of the assignment;
- If requested by DKF, to confirm in writing that the documents, information and explanations provided are accurate and complete; DKF is not expected to verify the accuracy or completeness of the documents made available to them;
- To verify whether the documents and statements provided by DKF correspond to their expectations and to the information provided by the client and, if this is not the case, to notify DKF without delay at the latest 8 days following delivery thereof. In the absence of such notification, the services provided shall be deemed to be approved by the client.
If the client uses or provides DKF with information or documentation belonging to third parties, the client shall make sure to obtain from those third parties the authorisations required for DKF to provide the services. The client is responsible for the relations with these third parties, for the quality of their contribution and of their work, as well as for the payment of their fees. Unless otherwise provided by law, the rules of professional conduct or the assignment letter, DKF will not check the accuracy of the information or the documentation provided by these third parties.
In the event that the client would fail to provide DKF with the relevant information and explanations needed for the proper performance of the assignment, this could lead to DKF being unable to provide or finalise the services or to the inclusion of reservations in any report that DKF is required to prepare under the contract. Unless otherwise provided by law or the rules of professional conduct, DKF is as a last resort entitled to stop the provision of services without prior notice or to terminate or suspend the contract with immediate effect.
VI.4. Non-poaching clause
The client and DKF explicitly agree not to directly or indirectly employ staff members or independent workers of the other party who are involved in the performance of the contract nor to have them perform work, either directly or indirectly (e.g. through a legal entity), outside the scope of a contract between the client and DKF during the entire term of the contract and for a period of 12 months following its termination, regardless of the reason for the termination, without the prior written consent of the other party.
Any violation of this non-poaching clause will give rise to a one-off lump-sum compensation equalling the total gross remuneration of the staff member concerned for the period of 6 months prior to the violation, without prejudice to the right of DKF to provide proof of and demand compensation for more extensive damage.
VI.5. Data protection
DKF processes personal data with a view to the provision of the services. For the purpose of this article, reference is made to the definitions and interpretations of the applicable European legislation relating to data protection (including the GDPR) on the one hand and the applicable national legislation relating to data protection on the other hand, hereinafter generally referred to as “Data Protection Legislation”.
The client confirms that the personal data provided to DKF within the context of the assignment is processed in accordance with the applicable Data Protection Legislation. Unless explicitly agreed otherwise, DKF is the data controller. DKF processes the personal data, in their capacity as data controller, in accordance with the assignment or in accordance with a legal obligation.
In accordance with the applicable Data Protection Legislation, DKF takes appropriate technical and organisational measures to protect personal data against unauthorised or unlawful processing, against accidental loss, destruction, alteration or damage of the personal data.
By signing this contract, the client explicitly acknowledges having been informed of the privacy statement of DKF, the most recent version of which can be found on the website.
VII. Fees
VII.1. Costs and fees
The costs and fees are determined in accordance with the legal and regulatory stipulations applicable to DKF and referred to in the assignment letter, of which these terms and conditions are an integral part.
The costs and fees are payable as the work performed on the client’s behalf progresses, even if the assignment is not completed yet.
Unless stated otherwise in writing, DKF staff members are not authorised to collect fees.
In case of minor shortcomings, the normal prices and fees shall continue to apply and the client cannot demand a price decrease from DKF.
DKF is entitled to periodically adjust the agreed rates to significant changes in their cost structure, including but not limited to changes in labour costs.
VII.2. Costs of third parties
Any specific costs incurred directly with third parties and necessary for the performance of our services will not be included in the fees and will be invoiced separately. At the client’s request, the supporting documents proving any costs incurred on their behalf will be presented.
VII.3. Terms of payment
Invoices and/or fee statements are payable in cash on the due date indicated, at the address of DKF’s registered office to the bank account indicated by DKF.
Late payments shall, by operation of law and without a formal notice of default being required, give rise to:
- Payment of interests at the legal interest rate pursuant to article 5 of the Act of 2 August 2002 on combating late payment in commercial transactions and;
- A lump-sum compensation equalling 10% of the unpaid amounts, with a minimum of € 250.00.
In case of non-payment of a specific invoice on the due date and if an insolvency procedure is started with respect to the client or if there are concurrent creditors, the unpaid balance of all other invoices, even those who have not yet fallen due and even if payment facilities had been granted, will become payable by operation of law and without a formal notice of default being required.
DKF is entitled to suspend the provision of their services without prior notice of default sent by registered post in case of non-payment or any other non-compliance by the client, provided that the client is duly informed. All costs and expenses resulting from the suspension are payable by the client.
DKF is under all circumstances entitled to payment of the fees and costs relating to the work already performed.
VII.4. Advances
DKF can request payment of one or several advances. These advances will be taken into account in the final statement of costs and fees.
VII.5. Objection to statement of costs and fees
Any objections to the statement of costs and fees must be raised by means of a registered letter containing the reasons for the objection, at the latest 21 calendar days after the date of the invoice. If no objections are raised, it is assumed that the client agrees with the services that are invoiced.
VII.6. Pledge
The client grants a pledge in favour of DKF on all present and future tangible and intangible property belonging to their business, regardless of the nature of their present and future activities, regardless of the place where such activities are now or hereafter conducted, and regardless, for tangible property, of whether it is located with the pledgor or with a third party, including DKF. This pledge guarantees the payment to DKF, on any grounds whatsoever, of all amounts payable as a result of the delivery of goods or the provision of services to the client. The pledge is granted for an indefinite period of time and can only be terminated by registered letter with acknowledgement of receipt and with six months’ notice. The termination shall only have effect for the future and shall have as a consequence that the pledge hereby established shall only serve as security for secured claims existing upon expiration of the notice period, even if they do not become due and payable until later.
If the pledge is registered in the pledge register, DKF is entitled to charge the client for the cost of the registration as well as a lump-sum administrative fee of €40.00. In the event of non-compliance by the client, the pledgee is authorised to cash in the pledge and is free to choose the realisation method.
VIII. Intellectual Property Rights
All reports and documents resulting from the assignment shall remain the intellectual property of DKF. Unless explicitly stipulated otherwise in writing, these reports and documents can only be used by the client after full payment of all fees and costs associated with the performance of the assignment entrusted to DKF and within the limits of the specific assignment for which they were drawn up. DKF can use the data supplied by the client for internal analyses and/or benchmarking.
IX. Force majeure
Neither party can be held liable vis-à-vis the other party if the non-observance of their obligations is the result of circumstanced beyond their reasonable control, including any advice, warning or ban issued by competent local, national, foreign or supernational authorities or resulting from a new policy of one of the parties with respect to, for instance, travel to certain countries or regions. If the circumstances that make it impossible for a party to perform their obligations during an uninterrupted period of 30 days persist, each party will, at any time following the expiration of this period of 30 days, be entitled to terminate the contract with 15 days’ written notice.
X. Invalidity
The invalidity, unlawfulness or unenforceability of one or several provisions of these general terms and conditions or of any agreement governing the legal relations between the parties shall not in any way affect the validity and enforceability of the other provisions of these agreements. In this case, the parties will consult with regard to substitute provisions that come closest in content and scope to the invalid, unlawful or unenforceable provision, taking into account the intention of the parties.
XI. Full agreement
The contract encompasses the full agreement between the parties with respect to the intended transactions and supersedes any previous oral agreements and documents relating thereto, except in the event that the parties have expressly deviated in writing from an earlier version of this contract. In that case these deviations agreed in writing shall remain in full force and effect, provided that they are not contrary to the applicable legislation.
XII. Applicable law and settlement of disputes
The interpretation and performance of the contract are governed by Belgian law.
The courts of the district where DKF’s registered office is located have jurisdiction for any disputes of any kind.