General Terms and Conditions applicable to Rubes U.S. Tax Services B.V.
Article 1. Definitions
The definitions indicated in capital letters have the following meaning within the framework of these general terms and conditions:
- a Documents: All information or data provided by the Principal to the Service Provider, whether or not contained on (non)physical carriers, including, but not exclusively: paper, CD, hard drives, email and digital environments, whether or not transferred to third parties, and all data created or collected by the Service Provider in the context of the execution of the Contract/Agreement, whether or not contained on (non)physical carriers including – but not exclusively: paper, CD, hard drives, email and digital environments, whether or not transferred to third parties as well as any other information of any relevance for the execution or completion of the Contract, whether or not contained on (non)physical carriers;
- b Contract/Agreement: The contract agreement, by which the Service Provider binds itself towards the Principal to carry out certain Activities;
- c Principal: The natural person or the legal entity who instructed the Service Provider to carry out the Activities;
- d Service Provider: Rubes U.S. Tax Services B.V. All Contracts are exclusively accepted and carried out by Rubes U.S. Tax Services B.V., not by or on behalf of an individual Employee, regardless whether the Principal has granted the Contract expressly or implicitly with a view to be implemented by a specific Employee or specific Employees. Articles 7:404, 7:407 paragraph 2 and 7:409 CC are expressly excluded;
- e Employee: A natural person employed by or affiliated with the Service Provider, whether or not under a contract of employment;
- f Activities: All work to be perform by the Service Provider for the benefit of the Principal for which an order was issued and which has been accepted by the Service Provider as well as all the work thereby resulting for the Service Provider.
Article 2. Applicability
1 These general terms and conditions apply to: all offers, quotations, contracts, legal relationships and agreements, by whatever name, whereby the Service Provider
undertakes/will undertake to carry out work for the Principal, as well as to all resulting Activities for the Service Provider.
- 2 Deviations from and additions to these general terms and conditions are valid only if expressly agreed in writing in, for example, a (written) agreement or order confirmation.
- In case these Terms and Conditions and the confirmation of the contract should contain conflicting provisions, the conditions set out in the confirmation of the contract shall apply.
- The applicability of any General Terms and Conditions of the Principal is expressly rejected by the Service Provider.
- 5 This Contract/Agreement – along with these general terms and conditions – represent all the agreements between the Principal and the Service Provider with respect to the Activities for which the Agreement was concluded.
Article 3. Principal’s data
- 1 The Principal is bound to provide the Service Provider with all the Documents which the Service Provider considers necessary for the correct execution of the awarded Contract, (a) in the required form, (b) in the required way and (c) available in a timely manner. The Service Provider shall determine what shall be understood under required form, required way and in a timely manner.
- 2 The Principal is responsible for the accuracy and the reliability of the Documents supplied by him, even if they originate from third parties, insofar as it cannot be otherwise due to the nature of the Contract.
- 3 The Service Provider has the right to suspend the execution of the Contract until such time as the Principal has complied with the obligations laid down in paragraphs 1 and 2.
- 4 The Principal indemnifies the Service Provider for damages, costs and fines resulting from incorrect or incomplete Documents.
- 5 The extra costs and extra hours spent by the Service Provider, as well as the other damages incurred by the Service Provider due to the failure, or the untimely or improper supply by the Principal of the Documents necessary to carry out the Activities, are accountable and for the risk of the Principal.
Article 4. Carrying out the Contract
1 The Service Provider carries out the Contract to the best of its ability and with due observance of the applicable laws and (professional) regulations.
- 2 The Service Provider determines the way in which the Contract is carried out and by which Employee (or employees).
- 3 The Service Provider has the right to have Activities carried out by a third party to be appointed by the Service Provider.
- 4 These general terms and conditions are also stipulated to apply to all persons, including third parties, involved in the implementation of the Activities by the Service Provider.
Article. 5. (Professional) regulations
- 1 The Principal cooperates constantly and completely to fulfil the Service Provider’s obligations arising from the applicable professional regulations.
- 2 The Principal is aware that the Service Provider – among others, but not exclusively -:
- a may be required to report certain transactions that it may become aware of during its Activities, based on the applicable laws and regulations, defined in the applicable laws and regulations, to the Government appointed authorities;
- b may, in certain situations, have to submit a fraud report on the basis of applicable laws and regulations;
- c may, under applicable laws and regulations, be required to conduct an enquiry into the (identity of) the Principal or the client.
- 3 The Service Provider excludes all damage liability arising with the Principal as a result of the Service Provider’s compliance with the applicable laws and (professional) regulations.
Article 6. Intellectual Property Rights
- 1 Carrying out the Contract by the Service Provider does not imply the transfer of intellectual property rights belonging to the Service Provider. All intellectual property rights that arise during, or as a result of the performance of the Contract, are owned by the Service Provider.
- 2 The Principal is expressly forbidden to copy, disclose or exploit the products of the Service Provider containing intellectual property rights, or products which contain intellectual property rights in respect of which use the Service Provider has acquired rights of use – including in this context anyway, but not limited to: computer programs, system designs, procedures, opinions, (model) contracts, templates, macros, and other intellectual creations.
- 3 The Principal is not permitted to provide the products referred to in the second paragraph to third parties without the prior written consent of the Service Provider, other than for the purpose of obtaining an expert opinion on the implementation of the Activities by the Service Provider. The Principal will in that case impose its obligations pursuant to this article, on the third parties appointed by him.
Article 7. Force Majeure
1 If the parties fail to comply with the obligations resulting from the agreement, or do not do so in a timely manner or properly as a result of force majeure within the meaning of art. 6:75 CC, those
obligations shall be suspended until such time as parties are capable of complying with this in the agreed manner.
In the event the situation referred to in paragraph 1 arises, the parties have the right to cancel the agreement as a whole or in part, in writing and with immediate effect, without the right to any compensation.
Article 8. Fee
1 The work carried out by the Service Provider, unless agreed otherwise, will be charged to the Principal on the basis of time spent and costs incurred.
2 In addition to the fee, the expenses incurred by the Service Provider and the declarations by third parties appointed by the Service Provider, will be charged to the Principal.
3 The Service Provider has the right to require an advance from the Principal.
4 If fees or prices should change after the conclusion of the Agreement, but before the Contract is carried out entirely, the agreed rate shall be adjusted accordingly.
5 The fee, if necessary with advances and expenses incurred by third parties, will be charged per month. Sales tax will be charged separately on all sums owed by the Principal to the Service Provider, if required by law.
Article 9. Payment
1 Payment by the Principal of the amounts due to the Service Provider, must be made within 14 (fourteen) days after the invoice date, unless otherwise agreed, without the Principal being entitled to any deduction, discount or set-off. The payment day is the date on which the amount due was credited to the Service Provider’s account.
2 The Service Provider shall at all times determine to which of the Principal’s outstanding amounts any payment will be allocated.
3 If the Principal fails to make payment within the time limit referred to in the first paragraph, or any other period agreed between the parties, the Principal shall legally be in default and the Service Provider shall be entitled to charge the legal (commercial) interest as from that moment.
4 If the Principal fails to pay within the time limit referred to in the first paragraph, the Principal shall be required to pay all judicial and extra judicial (collection) costs incurred by the Service Provider. The reimbursement of the incurred costs shall not be limited to any charges laid down by the court.
5 In case of a joint Contract, as far as the Activities have been carried out jointly for the Principals, the Principals shall be liable jointly and severally for the payment of the invoice amount and the resulting interests and costs.
5 If the Principal’s financial position or payment behaviour should give rise to this, at the discretion of the Service Provider, or if the Principal fails to pay an advance or to make a declaration within the payment period, the Service Provider shall be entitled to demand that the Principal immediately provides (additional)
collateral in a form to be determined by the Service Provider. If the Principal fails to come up with the required collateral, the Service Provider shall be entitled to suspend the further implementation of the agreement immediately, without prejudice to its other rights, and everything the Principal owes the Service Provider for whatever reason, shall immediately become due and payable.
Article 10. Terms
- 1 If a period/date has been agreed between the Principal and the Service Provider in which the Contract should be carried out and the Principal fails to: (a) comply with a prepayment – if agreed to – or (b) to make the necessary Documents available, timely, complete, in the desired form and in the required way, the Principal and the Service Provider shall negotiate a new term/date within which the Contract should be carried out.
- 2 Time limits within which the Activities ought to be completed, are only seen as a deadline if expressly and explicitly agreed to between the Principal and the Service Provider.
Article 11. Liability and Indemnifications
- 1 The Service Provider is not liable for any of the Principal’s damage which arises because the Principal has provided incorrect or incomplete Documents to the Service Provider.
- 2 The Service Provider is not liable for any consequential damages, business interruption or indirect damage resulting from the Service Provider’s non-performance, late or improper performance.
- 3 The Service Provider is only liable towards the Principal for direct damage that is the direct result of an attributable failure or a series of connected failures in the performance of the Contract. This liability is limited to a maximum of once the fee on the work carried out – until the time of the accountable shortcoming (or shortcomings) – in the context of the relevant Contract. If performance of the Contract covers a period exceeding six months, the aforementioned amount shall be set at once the fee on the work carried out in the context of the Contract in the last six months.
- 4 A coherent series of accountable shortcomings apply as one accountable shortcoming.
- 5 The limitations of liability contained in this article shall not apply if and to the extent that gross negligence or wilful misconduct of the Service Provider or its executive management occurred.
- 6 The Principal is bound to take damage reducing measures.
- 7 The Principal indemnifies the Service Provider against claims by third parties for damage caused because the Principal failed to provide the Service Provider with Documents, or provided incorrect or incomplete Documents.
- 8 The Principal indemnifies the Service Provider against claims by third parties (Service Provider employees and third parties engaged by the Service Provider) who suffered damage due to the execution of the Contract as a result of the actions or omissions of the
Principal or of unsafe situations in his company or organization.
Article 12. Cancellation.
- 1 The Principal and the Service Provider may terminate the agreement at any time (in the interim) without observing a notice period. If the agreement ends before the Contract has been completed, the Principal shall owe the fee payable in accordance with the hours specified by the Service Provider for Activities carried out for the benefit of the Principal.
- 2 Cancellation must be made in writing.
- 3 If the Principal proceeded with (interim) termination, the Service Provider shall be entitled to reimbursement of the resulting and plausible occupation loss on its side, as well as to reimbursement of the additional costs already incurred by the Service Provider and costs arising from any cancellation of third parties (such as – among others – any costs related to subcontracting).
- 4 If the Service Provider proceeded with (interim) termination, the Principal shall be entitled to the Service Provider’s assistance with the transfer of work to third parties, unless there is gross negligence or wilful misconduct on the part of the Principal which required the Service Provider to proceed with termination. The right to cooperation as determined in this paragraph, is subject to the Principal paying all advances or all declarations.
Article 13. Suspension right
1 After careful balancing of interests, the Service Provider is entitled to suspend all its obligations, including the issuance of Documents or other items to the Principal or third parties, until such time as all the Principal’s outstanding debts are fully met.
2 The first paragraph do not apply to the Principal’s Documents that haven’t been processed by the Service Provider (as yet).
Article 14. Complaints/Expiration
1 Complaints concerning the performed work and/or the invoice amount must be reported to the Service Provider in writing, within 30 days from the date of dispatch of the documents or information about which the Principal has raised a complaint, or within 30 days after the discovery of the defect if the Principal can demonstrate that he couldn’t reasonably have discovered the defect previously.
2 Complaints as referred to in the first paragraph, shall not suspend the Principal’s payment obligation.
3 In the event of a justified complaint, the Service Provider has a choice between adjustment of the charged fees, improving or redoing the rejected work for free, or not doing all or part of the rejected work (again), with a proportionate refund of the fees already paid by the Principal.
4 In as far as not provided otherwise in these general terms and conditions, any of the Principal’s claim rights and other entitlements vis-à-vis the Service Provider,
for whatever reason, related to the performance of Activities by the Service Provider, shall in any case expire one year after the Principal became aware of or could reasonably have known of the existence of such rights and powers. This term does not concern the possibility to submit a complaint to the appropriate complaints handling body (or bodies) and/or the Arbitration Board.
Article 15. Electronic communication
- 1 The Principal and Service Provider can communicate with each other by electronic means during the execution of the Contract.
- 2 The Service Provider is not liable to the Principal for damages as a result of the use of electronic means of communication, including – but not limited to – damage as a result of non-delivery or a delay in the delivery of electronic communications, interception or manipulation of electronic communications by third parties or by software/equipment used for sending, receiving or processing of electronic communications, transfer of viruses and the failure or malfunctioning of the telecommunications network or other electronic communications means, except insofar as the damage is the result of intent or gross negligence.
- 3 The data extracts from the sender’s computer systems provide compelling evidence of (the content of) the electronic communications sent by the sender until such time as a rebuttal is provided by the receiver.
Article 16. Other provisions
- 1 If the Service Provider carries out Activities at the Principal’s location, the Principal shall take care of a suitable work area, in compliance with the statutory working conditions standards and any other applicable regulations regarding working conditions. The Principal must ensure the Service Provider is in that case provided with office space and other facilities deemed necessary or useful in the opinion of the Service Provider to carry out the Agreement and that complies with all (legal) requirements. With regard to (computer) facilities made available, the Principal is required to ensure continuity by means of adequate back-up, security and virus control procedures. The Service Provider shall make use of virus checking procedures when the Service Provider uses the Principal’s facilities.
- 2 Principal shall not employ or approach any Employees involved in the Activities
to take up employment with the Principal, whether or not temporarily, directly or indirectly, or to carry out work during the term of the agreement or any extension thereof, and for 12 months thereafter, directly or indirectly, for the Principal, or independently, this under penalty of payment of a fine to the Service Provider of €75,000.00 (in words: Seventy-five thousand Euro) for each recorded offence and of €2,500.00 (in words: two thousand five hundred Euro) for each day the Principal remains in violation, without prejudice to the Service Provider’s right to compensation instead of claiming the actually suffered damage.
3 The Service Provider is entitled to mention the Principal’s name and to mention the work being done in main lines to the Service Provider’s (commercial) relations to indicate the Principal’s experience.
Article 17. Applicable law and choice of Court
1 This Agreement is subject to Dutch law.
2 All disputes will be settled by the competent court in the district in which the Service Provider is established.
3 The provisions in paragraph 1 and 2 of this article shall not affect the Principal’s ability to submit a dispute to the Arbitration Board and/or to follow the process of right of complaint.
Article 18. Repair clause in case of invalidity
- 1 If any provision in these general terms and conditions or from the underlying Contract/Agreement should be void, as a whole or in part and/or not valid and/or not enforceable as a result of any law, judicial decision or otherwise, this shall have no consequence for the validity of all other provisions of these terms and conditions or the underlying Contract/Agreement.
- 2 If any provision of these general terms and conditions or the underlying Contract/Agreement should be invalid for a reason as referred to in the previous paragraph, but would be valid if it had a more limited range or scope, then this provision will – in the first place – be automatically valid with the most far-reaching or extensive, more limited range or scope with which or in which it will be valid.
- 3 Without prejudice to paragraph 2, the parties can, if desired, negotiate new stipulations replacing the invalid or null and void provisions. In doing so, they will connect as much as possible with the goal and intent of the invalid or null and void provision.