Terms and conditions
Assignment
1. Wherever the term ‘assignment’ is used in these general terms and conditions, reference is made to the definition in Article 7:400 Paragraph 1 of the Dutch Civil Code.
2. An assignment will be deemed to be concluded between the client (hereinafter “the Client”) and MCA Legal as contractors. This will also apply if it is the Client's explicit or tacit intention to have the assignment carried out by a specific person. Articles 7:404 and 7:407 second paragraph of the Dutch Civil Code will be inoperative.
Applicability
3. These general terms and conditions will form part of all agreements of assignment involving the provision of services by MCA Legal and of all ensuing and/or related agreements between the Client and MCA Legal or their respective legal successors, as well as of all offers and / or quotations made or given by MCA Legal.
4. Any stipulations deviating from these terms and conditions shall only have effect if and insofar as MCA Legal explicitly confirms these in writing to the Client.
5. Should any stipulation forming part of these general terms and conditions or of the agreement be or become null and void, the agreement will otherwise remain in full force and the Parties will liaise in order to agree on the immediate replacement of the said stipulation by a stipulation as close as possible to the purport of the original stipulation.
Liability
6. MCA Legal will be liable vis-à-vis the Client in the event of failure to execute the assignment, insofar as this failure consists of failure to provide the care and expertise that may be expected in the performance of the Assignment, subject to the provisions in the following subclause.
7. MCA Legal will not be liable for any losses suffered by the Client or third parties that result from the provision of incorrect or incomplete data or information by or on behalf of the Client to MCA Legal or losses that are otherwise the result of acts or omissions by or on behalf of the Client, losses suffered by the Client or third parties as a result of acts of or omissions by auxiliary staff engaged by MCA Legal, even if these staff are employed by an organisation affiliated to MCA Legal, or for trading losses, indirect losses or consequential damage suffered by the Client or third parties.
8. MCA Legal's exclusions from liability set out in the previous subclause will not apply insofar as the damage or losses are the result of MCA Legal's intention or gross negligence.
9. Any liability will be limited to the amount paid out in the relevant case under the professional liability insurance taken out by MCA Legal. Upon request, the Client will be sent an extract of the current professional liability insurance policy.
10. A claim for compensation of damage or loss must be submitted to MCA Legal within two weeks of the Client discovering the damage, failing which any rights to compensation will lapse.
11. The Client is obliged to indemnify MCA Legal against and compensate MCA Legal in the event of any claims by third parties – including shareholders, directors, supervisory directors and persons in the service of the Client, as well as affiliated legal persons and companies and others involved in the Client's organisation – arising from or related to the activities of MCA Legal for the Client, except insofar as these claims are the result of MCA Legal's intention or gross negligence.
12. The assignment will be executed exclusively for the Client. Third parties will not be permitted to derive any rights from the contents of the activities performed.
Obligations of the Client
13. In order to ensure that the assignment is properly executed, the Client will provide MCA Legal with all data and information required by MCA Legal in the form and manner specified by MCA Legal. If the Client fails to comply with this obligation, MCA Legal will not be obliged to continue performance of the assignment. Any additional costs incurred as a result of the Client's failure to provide the required data or information fully, timely or properly will be borne by the Client.
14. The Client is obliged to inform MCA Legal immediately of any facts or circumstances that may be of importance in connection with the performance of the assignment.
15. The Client will vouch for the accuracy, completeness and integrity of the data and information provided by or on behalf of the Client to MCA Legal.
16. The Client will provide all information required by MCA Legal, and in particular the information referred to in the 2003 Services Identification Law (“Wet Identificatie bij Financiële Dienstverlening”), which is necessary in order to determine the Client's identity. The Client may be required to update this information from time to time.
17. If the Client informs a third party of the contents of the activities carried out by MCA Legal for the Client, the Client should advise the third party that these general terms and conditions will apply and ensure that they are accepted by such third party.
18. The Client will indemnify MCA Legal against any claims by third parties, who allege that they have suffered losses as a result of or in connection with activities performed by MCA Legal for the Client.
19. Invoices issued by MCA Legal will be paid, without deduction, suspension or set-off, in the currency of the Netherlands within 14 days of the invoice date to the bank account stated in the invoice, failing which the Client will be deemed to be in default. Invoicing can be done at the end of the month or interim, always at the choice of MCA Legal. No rights can be derived from a previously utilized means of invoicing. All judicial or extra-judicial costs related to the collection of invoice payments will be borne by the Client, with a minimum of 15% of the collectable amount. The court costs will not be limited to the costs of the proceedings, but will be wholly for the Client's account if the Client is found to be wholly or largely at fault.
20. MCA Legal may – even during performance of an assignment – require full or partial payment in advance and / or provision of security, failing which MCA Legal will be entitled to suspend performance of its obligations.
Performance of the assignment
21. MCA Legal will determine the manner in which and by which person or persons the assignment will be performed, but will take account, wherever possible, of the requirements made known by the Client.
22. MCA Legal will perform the activities professionally, to the best of its abilities and with due care. MCA Legal cannot, however, guarantee that any intended result will be achieved.
23. Periods within which activities are scheduled to be completed will only be regarded as deadlines if such is agreed in writing.
24. Unless it is established that it will never be able to be performed, the agreement may not be dissolved by the Client on the grounds that a period for completion has been exceeded, unless MCA Legal also fails to perform the agreement or fails to complete it within a reasonable period, which will be notified to the Client in writing at the end of the period originally agreed for delivery.
Engagement of third parties
25. The choice of the third party to be engaged by MCA Legal will, wherever considered reasonable, be made in consultation with the Client. MCA Legal will not be liable for any failure by such third party, unless this is the result of MCA Legal's intention or gross negligence.
26. Should such third parties wish to limit their liability in connection with the performance of an assignment for the Client, MCA Legal will assume and will, if necessary, confirm that all its assignments from the Client allow liability to the Client to be limited in this way.
Intellectual property rights
27. All rights in respect of products of the intellect that MCA Legal develops or uses in performance of the assignment, including advice, procedures, model or other contracts, systems, system designs and computer programmes, will accrue to MCA Legal, insofar as they have not already accrued to third parties.
28. Except with MCA Legal's prior written consent, the Client will not be allowed, whether on its own or by engaging third parties, to use, reproduce, publish or exploit the said products of the intellect or recordings thereof on data carriers. The foregoing does not affect the provisions of subclause 31.
Confidentiality
29. MCA Legal undertakes to keep confidential vis-à-vis third parties who are not involved in the execution of the assignment, the data and information provided by or on behalf of the Client. This obligation will not apply insofar as disclosure by MCA Legal is required on legal or professional grounds or the Client has discharged MCA Legal from the duty of confidentiality. The MCA Legal will disclose information, if required to do so under the Disclosure of Unusual Transactions Act (“Wet Melding Ongebruikelijke Transacties”).
30. MCA Legal will be entitled, if it acts for itself in disciplinary, civil or criminal proceedings, to use the data and information provided by or on behalf of the Client, as well as any other data and information of which MCA Legal. has become aware during the performance of the assignment, insofar as such data and information may be of importance in MCA Legal's reasonable opinion.
31. Except with MCA Legal's prior written consent, the Client will not be permitted to disclose or otherwise make available to third parties the contents of advice, opinions or other information provided by MCA Legal, whether written or otherwise, except to the extent that such arises directly from the agreement, is done in order to obtain an expert opinion on the relevant activities of MCA Legal, the Client is obliged for legal or professional reasons to disclose the information or if the Client acts for itself in disciplinary, civil or criminal proceedings.
Rates
32. The Client will pay a fee to MCA Legal and will reimburse expenses incurred. These will be calculated in accordance with MCA Legal's customary rates, calculation methods and procedures.
33. MCA Legal will be entitled to change its hourly rates and the reimbursement of expenses in respect of travel by car or train. Should the change result in an increase of more than 10%, or should an increase occur within one month of an assignment being agreed between MCA Legal on the one hand and the Client on the other hand, the Client will be entitled to dissolve the agreement. This right will lapse 15 days after the date of the first invoice sent to the Client following the increase in the relevant hourly rate and/or the above-mentioned reimbursement of travel expenses.
General provisions
34. Insofar as not provided for otherwise in these general terms and conditions, any rights on any grounds whatsoever that the Client may have vis-à-vis MCA Legal in respect of activities performed by MCA Legal will in any event lapse one year from the moment at which the Client became aware of or could reasonably be expected to be aware of the existence of such rights.
35. These general terms and conditions have also been stipulated on behalf of the director of MCA Legal.
36. All agreements between the Client and MCA Legal will be solely subject to the law of the Netherlands. The Amsterdam Court will be competent to hear civil disputes, unless the Client and MCA Legal opt for a different method of resolving disputes.
37. All costs incurred by MCA Legal in connection with judicial proceedings taken against the Client will be borne by the Client, even insofar as these costs exceed the legal order to pay the costs of the proceedings, unless MCA Legal is ordered to pay such costs as the unsuccessful party in the proceedings.
38. These general terms and conditions have been issued in both Dutch and English. The Dutch text will be binding in the event of any differences of content or purport between the two versions.
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