Terms and Conditions – Farber Zwaanswijk Advocaten

Farber Zwaanswijk Advocaten B.V. is a private limited liability company incorporated under Dutch law, with its registered office at Prinsegracht 6 (2512 GA) in The Hague, the Netherlands, and registered with the Dutch Chamber of Commerce under number 59199784, hereinafter referred to as the “Contractor”, a company engaged in the practice of law.

All instructions are accepted and performed exclusively by the Contractor, with the exclusion of Articles 7:404 and 7:407 paragraph 2 of the Dutch Civil Code, irrespective of whether the Client has granted the instruction expressly or implicitly with a view to its performance by a specific person or specific persons.

These General Terms and Conditions apply to all instructions and/or agreements between the Client and the Contractor, respectively their legal successors, as well as to all agreements arising therefrom and/or related thereto, and to all offers and/or quotations issued by the Contractor.

These General Terms and Conditions apply not only to the Contractor but also for the benefit of its affiliated private limited liability companies, Farber B.V. and Zwaanswijk B.V., as well as all other persons employed by the Contractor, all persons engaged by the Contractor in the performance of any instruction, and all persons for whose acts or omissions the Contractor may be liable.

The applicability of any general terms and conditions of the Client is expressly rejected by the Contractor. Provisions deviating from these Terms and Conditions shall only be valid if and insofar as they have been expressly confirmed in writing by the Contractor to the Client.

If any provision forming part of these General Terms and Conditions or of the agreement is or becomes null and void or is annulled, the remainder of the agreement shall remain in force as much as possible, and the relevant provision shall, without delay and in consultation between the parties, be replaced by a provision that approximates the intent and purpose of the original provision as closely as possible.

These General Terms and Conditions shall also apply to any additional instructions and follow-up instructions issued by the Client.

The engagement confirmation is based on the information provided by the Client to the Contractor at that time. The engagement confirmation shall be deemed to accurately and fully reflect the agreement.

If the instruction has been given verbally, or if an engagement confirmation has been sent, the instruction shall be deemed to have been concluded under the applicability of these General Terms and Conditions at the moment the Contractor commences performance of the instruction at the Client’s request.

All instructions are accepted and performed exclusively by the Contractor or by a third party engaged by the Contractor. This also applies if it is the express or implied intention that the instruction be carried out by a specific person.

The Client is obliged to provide the Contractor with all data and information requested by the Contractor, as well as all data and information which the Client can reasonably be expected to know the Contractor requires for the proper performance of the instruction: (a) in a timely manner; (b) in the form requested by the Contractor; and (c) in the manner requested by the Contractor.

The Contractor shall only be obliged to (further) perform the instruction if the Client has provided all data and information requested by or on behalf of the Contractor. Any additional costs arising from the Client’s failure to provide the requested data and information, or failure to do so in a timely or complete manner, shall be borne by the Client.

The Client is obliged to inform the Contractor without delay of any facts and/or circumstances that may be relevant to the performance of the instruction. The Client warrants the accuracy, reliability, completeness, and lawfulness of the data and information provided by or on behalf of the Client, including where such data and information are supplied through third parties or originate from third parties.

The Client is responsible for proper compliance with the applicable laws and regulations concerning the protection of personal data, including the provision and making available to the Contractor of personal data relating to its personnel, clients, or third parties, even if such data originate from third parties or are provided by third parties on the Client’s behalf.

The Contractor cannot be held liable in connection with any failure or improper compliance by the Client in this respect.

The Client is obliged to inform the Contractor without delay of any facts and circumstances that may be relevant to the performance of the instruction.

The Contractor shall be entitled to suspend the performance of the instruction until such time as the Client has fulfilled the aforementioned obligations.

Any additional costs, additional hours, and any other damages incurred by the Contractor as a result of the Client’s failure to comply with the aforementioned obligations shall be borne by the Client and at the Client’s risk.

The Contractor shall determine the manner in which and by whom the instruction is performed and may, on behalf of the Client, engage others (auxiliary person(s) and/or third party/parties) for that purpose.

The instruction shall be carried out to the best of the Contractor’s ability and in the capacity of a diligent professional practitioner. The Contractor does not guarantee the achievement of the intended result. This also applies where the Contractor has been requested to provide an estimate regarding the completion of the matter.

The instruction shall be performed in accordance with the applicable (professional) rules and regulations and with all requirements imposed by or pursuant to law. The Client shall at all times provide full cooperation in respect of the obligations arising therefrom for the Contractor.

The Client is aware that, pursuant to the Dutch Anti-Money Laundering and Anti-Terrorist Financing Act (Wet ter voorkoming van witwassen en financieren van terrorisme – Wwft), the Contractor:

1. may be required to conduct an investigation into the identity of the Client and/or the ultimate client;
2. may be required to report certain transactions to the competent authorities designated by the government for that purpose.

For the purposes of these Terms and Conditions, applicable (professional) rules and regulations shall in any event include the applicable rules and codes of conduct of the Netherlands Bar Association (Nederlandse Orde van Advocaten), the Dutch Lawyers Act (Advocatenwet), the Regulation on the Practice of the Profession (Reglement Beroepsuitoefening), and the Special Code of Conduct of the Dutch Association of Tax Advisers (Nederlandse Orde van Belastingadviseurs – NOB).

The Contractor excludes all liability for any damage arising as a result of the Contractor’s compliance with the laws and (professional) rules and regulations applicable to it.

In connection with the instruction, the Contractor shall maintain a working file containing copies of relevant documents, which file shall remain the property of the Contractor.

During the performance of the instruction, the Client and the Contractor may, at the request of either party, communicate with each other by electronic mail.

The Client and the Contractor shall not be liable to each other for any damage arising from the use of electronic mail. Both the Client and the Contractor shall take all reasonable measures that may be expected to prevent risks such as the spread of viruses and data corruption.

In the event of any doubt regarding the content and/or transmission of electronic mail, the data extracts from the Contractor’s computer systems shall be decisive.

The Contractor shall at all times be entitled to terminate its activities.

Deadlines within which the work is to be completed shall only constitute strict deadlines if this has been expressly agreed in writing.

If the Client is required to pay a deposit or advance payment, or to provide data and information necessary for the performance of the instruction, the period within which the work is to be completed shall not commence until full payment has been received by the Contractor and/or the required data and information have been fully made available to the Contractor.

Unless performance has become permanently impossible, the Client may not terminate the agreement on the grounds of exceeding a deadline until, after expiry of the agreed period, the Client has granted the Contractor a reasonable period in writing to perform the instruction (in full) and the Contractor has failed to perform the instruction, or to perform it in full, within that additional period.

The agreement is entered into for an indefinite period, unless the content, nature, or scope of the instruction implies that it has been entered into for a definite period.

The Client and the Contractor may terminate the agreement at any time (including interim termination), subject to a reasonable notice period, unless principles of reasonableness and fairness preclude termination or termination subject to such notice period.

Notice of termination must be given in writing to the other party.

The agreement may be terminated (including interim termination) by either the Contractor or the Client by registered letter without observing a notice period if the other party is unable to pay its debts, if a trustee, administrator, or liquidator has been appointed, if the other party enters into a debt restructuring arrangement, ceases its activities for any reason, or if the occurrence of any of the aforementioned circumstances is reasonably anticipated, or if circumstances arise that justify immediate termination in the interest of the terminating party.

In all cases of (interim) termination, the Contractor shall retain the right to payment of the invoices relating to work performed up to that time, and the provisional results of the work performed up to that time shall be made available to the Client, subject to reservation.

If the agreement is (interim) terminated by the Client, the Contractor shall be entitled to compensation for any demonstrable loss of capacity incurred on its side, as well as for any additional costs that the Contractor has reasonably incurred or must incur as a result of the early termination of the agreement (including, but not limited to, costs relating to any subcontracting), unless the termination is based on facts and circumstances attributable to the Contractor.

If the agreement is (interim) terminated by the Contractor, the Client shall be entitled to the Contractor’s cooperation in transferring the work to third parties, unless the termination is based on facts and circumstances attributable to the Client.

To the extent that the transfer of the work entails additional costs for the Contractor, such costs shall be charged to the Client.

Upon termination of the agreement, each party shall promptly return to the other party all goods, items, and documents in its possession that are owned by the other party.

All rights relating to the products of the Contractor, such as advice, pleadings, templates, contracts, systems, programs, and accumulated know-how, shall vest in the Contractor, insofar as such rights do not already vest in third parties.

Except with the Contractor’s express prior written consent, the Client is not permitted to reproduce, disclose, or otherwise exploit the intellectual creations or their fixation on any data carriers, whether or not in conjunction with or through the engagement of third parties.

The Contractor shall be obliged to keep confidential all data and information provided by or on behalf of the Client vis-à-vis third parties who are not involved in the performance of the instruction.

This obligation shall not apply to the extent that the Contractor is subject to a statutory or professional duty to disclose, including obligations arising under the Dutch Anti-Money Laundering and Anti-Terrorist Financing Act (Wet ter voorkoming van witwassen en financieren van terrorisme – Wwft) and other national or international regulations of a similar nature, or to the extent that the Client has released the Contractor from the duty of confidentiality.

The foregoing shall not preclude confidential collegial consultation within the Contractor’s organisation, insofar as the Contractor deems this necessary for the careful performance of the instruction or for the proper fulfilment of a statutory or professional obligation.

If the Contractor acts on its own behalf in disciplinary, civil, arbitral, administrative, or criminal proceedings, it shall be entitled to use the data and information of which it has become aware in the performance of the instruction, insofar as these may reasonably be considered relevant in its judgment.

Except with the Contractor’s express prior written consent, the Client shall not be permitted to disclose or otherwise make available to third parties the content of any advice, opinions, or other statements of the Contractor, whether in writing or otherwise, except insofar as this follows directly from the agreement, is required for obtaining an expert opinion regarding the relevant work performed by the Contractor, is required pursuant to a statutory or professional duty of disclosure resting upon the Client, or where the Client acts on its own behalf in disciplinary, civil, arbitral, administrative, or criminal proceedings.

The Contractor shall be entitled to mention the Client’s name and to describe in general terms the work performed for the Client to the Contractor’s (commercial) relations as an indication of the Contractor’s experience.

In the context of an instruction provided by the Client to the Contractor, or in the context of compliance with statutory obligations resting upon the Contractor, the Contractor may process personal data relating to the Client and/or persons affiliated with or employed by/for the Client.

In connection with the optimisation of its services to the Client, as well as for the purpose of contacting the Client and/or persons employed by/for the Client with information about and services of the Contractor and third parties, the Contractor may process personal data.

The processing of personal data by the Contractor in the context of the activities referred to above shall take place in accordance with the applicable laws and regulations concerning the protection of personal data.

The Client shall owe the Contractor a fee as well as reimbursement of incurred (office) costs in accordance with the Contractor’s customary rates, calculation methods, and practices.

The Contractor shall be entitled to request an advance payment and/or a deposit from the Client.

If, after the conclusion of the agreement but before the instruction has been fully performed, cost-determining factors such as wages and/or prices are subject to change, the Contractor shall be entitled to adjust the previously agreed fee accordingly.

All rates are exclusive of value added tax (VAT) and any other levies imposed by governmental authorities.

Invoices issued by the Contractor shall be paid in full, without any deduction and/or set-off, within the period stated on the invoice.

Thereafter, and in any event after the expiry of 30 days from the invoice date, the Contractor shall be entitled to charge statutory interest.

If the Client fails to pay within the aforementioned term, the Client shall be obliged to reimburse all extrajudicial and judicial (collection) costs incurred by the Contractor, including insofar as such costs exceed any court-awarded costs order, unless the Contractor is ordered to bear the costs as the unsuccessful party.

The date of payment shall be the date on which the amount due is credited to the Contractor’s bank account.

Any objections to the amount of the invoice shall not suspend the Client’s obligation to pay.

If the Client fails to make payment within the term referred to in the first paragraph, or within any other term agreed between the parties, the Client shall be in default by operation of law, and the Contractor shall be entitled to charge statutory interest from that moment onward.

In the event of a jointly issued instruction, the Clients shall, insofar as the instruction has been performed for their joint benefit, be jointly and severally liable for payment of the invoice amount and any interest and costs due.

The Contractor reserves the right, including during the performance of an instruction, if in the Contractor’s opinion the Client’s financial position or payment behaviour so warrants, to require full or partial advance payment and/or the provision of security from the Client, failing which the Contractor shall be entitled to suspend the performance of its obligations.

These General Terms and Conditions shall also apply in the event that the Client qualifies for state-funded legal aid and chooses not to make use of that possibility.

These General Terms and Conditions shall likewise apply where legal aid has been granted and a personal contribution is payable. The personal contribution shall in that case be invoiced as an advance payment.

Any complaint relating to work performed or to an invoiced amount must, on pain of forfeiture of all rights, be submitted in writing to the Contractor within one year from the date of dispatch of the documents or information to which the complaint relates, or, if the Client demonstrates that the defect could not reasonably have been discovered earlier, within fourteen (14) days after discovery of the defect.

The submission of a complaint shall not suspend the Client’s obligation to pay.

In the event of a justified complaint, the Contractor shall have the option to either adjust the fee charged, remedy or re-perform the relevant work free of charge, or refrain from further performance of the instruction in whole or in part, subject to a proportional refund of the fee already paid by the Client.

The Contractor shall be liable to the Client solely for a shortcoming in the performance of the instruction insofar as such shortcoming consists of a failure to observe the due care and professional expertise that may reasonably be relied upon in the performance of the instruction.

The total liability of the Contractor and of any employees, auxiliary persons and/or third parties engaged by it shall at all times be limited to the amount paid out in the relevant case under the Contractor’s professional liability insurance, including the amount of the deductible that, pursuant to the applicable insurance policy, is borne by the Contractor in the relevant case.

The liability of the Contractor for any shortcoming in the performance of the instruction, as well as for any unlawful act committed by the Contractor, shall be limited to three times the amount of the fee (excluding VAT) that the Client has paid and/or still owes to the Contractor under these General Terms and Conditions in the relevant calendar year in respect of the work to which the event causing the damage relates or with which it is connected, with a maximum of three hundred thousand euros (€300,000).

If, for any reason whatsoever, no payment is made under the professional liability insurance, any liability shall be limited to three times the amount invoiced by the Contractor in the relevant matter in the relevant calendar year, with a maximum of three hundred thousand euros (€300,000).

By way of deviation from Article 6:76 of the Dutch Civil Code, the Contractor shall only be liable for shortcomings of auxiliary persons and/or third parties engaged by it if and insofar as the resulting damage can be recovered from such auxiliary persons and/or third parties, without prejudice to the Client’s right to bring a direct claim against such auxiliary persons and/or third parties.

The Contractor shall not be liable for any errors and/or shortcomings of a third party engaged by it in the performance of that party’s services.

The Contractor shall be entitled, on behalf of the Client, to accept any limitation of liability that such third party may have stipulated.

Not only the Contractor, but also all persons engaged in the performance of any instruction for a Client, whether as “partner” (as referred to above), employee, adviser, third-party contractor, or in any other capacity, shall be entitled to invoke these General Terms and Conditions.

The same shall apply to former employees and other former associates as referred to above (without limitation), including their respective heirs, if they are held liable after having left the firm.

A claim for compensation of damages must be submitted to the Contractor no later than twelve months after the Client has discovered, or could reasonably have discovered, the damage, failing which the right to claim damages shall lapse.

The Client shall indemnify and hold the Contractor harmless against all claims by third parties — including, but not limited to, shareholders, directors, supervisory board members, and employees of the Client, as well as affiliated legal entities and enterprises and other persons involved in the Client’s organisation — arising out of or in connection with the work performed by the Contractor for the Client.

In the event that the Contractor, or any of its employees and/or auxiliary persons engaged by it, is imposed a fine as a co-perpetrator or accomplice within the meaning of the Dutch General Administrative Law Act (Algemene wet bestuursrecht) or the Dutch Criminal Code (Wetboek van Strafrecht) in connection with work performed under the instruction, the Client shall indemnify and hold the Contractor and/or its employees and/or auxiliary persons harmless in all circumstances in respect of such fine, in such a manner that the Client shall at all times be obliged to fully compensate the Contractor and/or its employees and/or engaged third parties.

The Client shall indemnify and hold the Contractor harmless against all claims by third parties, including the costs incurred by the Contractor in connection therewith, which in any way relate to the work performed for the Client, except in cases of wilful misconduct or gross negligence on the part of the Contractor.

The Contractor shall be entitled to have archived files destroyed five (5) years after the file has been closed.
After this five-year period, the Client must take into account that the files may no longer be available.

The Contractor shall be entitled to have the financial documents of archived files destroyed seven (7) years after the file has been closed.

After this seven-year period, the Client must take into account that the financial documents relating to the files may no longer be available.

The Client may, if dissatisfied with the services of the Contractor, make use of the office complaints procedure, which can be found at www.fzadvocaten.nl/en/complaints-procedure.

Complaints that are not resolved through the office complaints procedure shall be submitted to the Dean of the Hague Bar Association (Deken van de Orde van Advocaten Den Haag).

The legal relationship to which these General Terms and Conditions apply shall be governed by Dutch law.
Disputes shall be submitted to the competent court in The Hague, or, if the Client is a consumer and so elects, to the competent court in the place of residence of the defendant Client, provided that such choice is made in writing and communicated to the Contractor before the dispute has been brought before a court.

If the Contractor acts as the claimant, it shall, by way of deviation from the foregoing, be entitled to submit the dispute to the competent foreign court having jurisdiction over the Client.