1. General
Schaap & Partners, advocaten en notarissen (“Schaap & Partners”) established in Rotterdam, is a partnership of private limited liability companies (“professional corporations”) and natural persons. A list of the partners will be provided on request.
2. Applicability of these general terms and conditions
2.1 These General Terms and Conditions apply to every assignment given to Schaap & Partners and/or its individual partners or managing directors of the professional corporations and/or those working for Schaap & Partners, and also apply to any legal relationship that arises as a result thereof or in connection therewith.
2.2 These General Terms and Conditions may also be invoked by natural persons and legal entities associated with Schaap & Partners, either directly or indirectly, and that are involved in any manner in the services provided by or on behalf of Schaap & Partners. Schaap & Partners and these natural persons and legal entities are referred to below jointly and separately as: “Schaap & Partners et al.”.
3. Assignments
3.1 Schaap & Partners will operate as sole contracting party of the client. Section 7:404 (which relates to the situation where it is the client’s intention that an assignment be carried out by a specific person) and section 7:407 subsection 2 (which imposes a joint and several liability where an assignment is given to two or more persons) of the Dutch Civil Code and any other regulation that would lead to the partners’ joint and several liability do not apply.
The partners of the professional corporations who perform professional services for Schaap & Partners may be referred to by or on behalf of Schaap & Partners as “partner” or “vennoot”, this in accordance with general professional custom. The person referred to as such acts exclusively for the account and risk of Schaap & Partners in performing his or her professional services.
3.2 Schaap & Partners is free to have the assignments referred to in 2.1 carried out by persons employed by its firm, under its responsibility, and in particular cases by engaging third parties.
4. Liability of third parties
4.1 The performance of an assignment referred to in 2.1 takes place solely on behalf of the client.
4.2 The client indemnifies Schaap & Partners et al. against all claims of third parties which are related to an assignment as referred to in 2.1 and/or to services rendered for the client, unless those claims ensue from wilful misconduct, gross negligence or wilful recklessness of Schaap & Partners et al. Also defence costs incurred by Schaap & Partners et al. against such claims of third parties are borne by the client.
5. Liability
5.1 Any liability related to an assignment as referred to in 2.1 is limited to the amount paid out under Schaap & Partners’ professional liability insurance in the matter concerned, plus the amount of the deductible which under the policy conditions is not borne by the insurer.
5.2 If, for whatever reason, no payment is made under the insurance referred to in 5.1, any liability is limited to the amount of the fee due by the client and paid to the partnership in the matter concerned, until a maximum of € 100,000.
5.3 Liability for indirect or consequential damage is excluded in all circumstances.
5.4 Claims to compensation will lapse if no action is brought before the court within one year from the date when the damage occurred.
5.5 Limitation or exclusion of liability stipulated in this article does not apply insofar as the damage ensues from wilful misconduct, gross negligence or wilful recklessness of Schaap & Partners and/or its managers, whether or not subordinate.
6. Engagement of third parties
6.1 The choice of third parties to be engaged by Schaap & Partners will, where customary, possible and reasonably required, take place after consultation with the client and with due observance of the care as might reasonably be expected from Schaap & Partners. Schaap & Partners is not responsible for the way in which these third parties carry out their work and is not liable for any shortcomings on the part of these third parties, except in the case of wilful misconduct, gross negligence or wilful recklessness on the part of Schaap & Partners.
6.2 Schaap & Partners is authorized to agree, also on behalf of the client, to the terms and conditions that are applicable to the relationship between it and a third party or that are stated by a third party, including the limitation of liability, without prior consultation with the client. Schaap & Partners can rely on such terms and conditions in as much as it concerns the implementation of the assignment by such third party.
7. Money Laundering and Terrorist Financing (Prevention) Act
7.1 Under the Money Laundering and Terrorist Financing (Prevention) Act (Wet ter voorkoming van witwassen en de financiering van terrorisme (Wwft)), Schaap & Partners or the persons as referred to in 3.2 are obliged to notify the Financial Intelligence Unit (FIU-Nederland) of any unusual transactions within the meaning of that Act.
7.2 Under the Wwft, Schaap & Partners or the persons as referred to in 3.2 are not authorized to commence their services or, where applicable, to continue their services until completion of the identification and verification procedure described in that Act with regard to the client and beneficial owner, if any.
7.3 Schaap & Partners et al. shall in no circumstances be liable for any past, present or future loss sustained by a client in connection with a disclosure made under the Wwft, also when this disclosure was not correct, except in the case of wilful misconduct, gross negligence or wilful recklessness on the part of Schaap & Partners et al.
7.4 Schaap & Partners et al. shall in no circumstances be liable for any past, present or future loss sustained by a client in connection with the fact that Schaap & Partners et al. was unable to commence or continue its services because the identification and verification procedure as referred to in 7.2 had not yet been completed, except in the case of wilful misconduct, gross negligence or wilful recklessness on the part of Schaap & Partners et al.
7.5 The client indemnifies Schaap & Partners et al. against all claims of third parties alleging that they suffered loss by a disclosure made in connection with the assignment in question under the Wwft, also when this disclosure was not correct, except in the case of wilful misconduct, gross negligence or wilful recklessness on the part of Schaap & Partners et al.
8. Fees and payments
8.1 Unless otherwise agreed, Schaap & Partners will charge a fee for its services based on time worked multiplied by the hourly rates set by Schaap & Partners. The fee will be increased by 6% office surcharge, Dutch VAT (if applicable), translation and travelling expenses (if any) and disbursements (such as court registry fees, bailiff’s costs, cadastral costs, costs for obtaining Chamber of Commerce extracts and Ministry of Justice forms etc). This fee and other costs due by the client will in principle be invoiced on a monthly basis and on completion of the file in question.
8.2 Schaap & Partners has the right to change its hourly rates and the costs charged for travel by car or public transport. If the change represents an increase of more than 10% or if an increase takes place within 3 months after the conclusion of the contract between Schaap & Partners and the client, the client has the right to terminate the agreement. This right to terminate the agreement will lapse on the fifteenth day after the date of the first fee note sent to the client after the hourly rate and/or travel allowance was increased.
8.3 Before commencing its services in relation to the contract, Schaap & Partners has the right to demand payment of an advance. The advance will be set off against the final fee note that was sent to the client in the matter concerned.
8.4 Payment will be due within 14 days of the fee note date, without any discounts, suspension or setoff, failing which statutory (commercial) interest will be due as from the fifteenth day. Objections on the part of the client must be submitted in writing to Schaap & Partners as soon as possible and supported by reasons, but no later than within 14 days of the fee note date, together with the payment of the undisputed part of the fee note.
8.5 The client is obliged, at Schaap & Partners’ first request which will be made in accordance with the professional rules for lawyers and civil-law notaries, to grant security right(s) yet to be determined to Schaap & Partners as security for the fulfilment by the client of its payment obligations towards Schaap & Partners.
8.6 Schaap & Partners is in any way authorized to suspend its services when fee notes and/or advance fee notes have not been settled within the payment term in question, or when, in the opinion of Schaap & Partners, the credit risk on the client is considered too high or the continuity of a client’s business operations is not sufficiently assured.
8.7 If fee notes have been left unpaid for 30 days from the fee note date, Schaap & Partners is authorized to charge extrajudicial costs of 15% of the amount owing with a minimum charge of € 150. All extrajudicial and legal costs related to the collection of fee notes are borne by the client. The legal costs are not confined to the assessed legal costs, but will be charged in full to the client if the latter is (predominantly) found to be at fault.
9. Clients’ accounts and trust accounts
9.1 All costs to be incurred by Schaap & Partners in connection with payments made by or on behalf of the client into a clients’ account (referred to in Section 25 of the Notaries Act) of the civil-law notaries of Schaap & Partners or into a trust account of the Stichting Beheer Derdengelden Schaap & Partners will be borne by the client, including administrative costs and extrajudicial and legal costs arising from a dispute between the client and a third party about the entitlement to use the distributable element of the balance on the clients’ account or trust account in question. Unless otherwise agreed, the administrative costs to be charged by Schaap & Partners are, on an annual basis, for the first one hundred thousand euro (€ 100,000) two percent (2%), the next one hundred thousand euro (€ 100,000) one percent (1%), the next one hundred thousand euro (€ 100,000) five tenths percent (0.5%), the next two hundred thousand euro (€ 200,000) twenty‑five hundredths percent (0.25%), the next five hundred thousand euro (€ 500,000) one tenths percent (0.1%) and for amounts upwards five hundredths percent (0.05%).
9.2 The client is not allowed to assign or pledge a debt against Schaap & Partners or a civil-law notary of Schaap & Partners or against the Stichting Beheer Derdengelden Schaap & Partners with regard to an element of the balance on a clients’ account or trust account that is distributable to the client.
9.3 Schaap & Partners or its civil-law notaries and the Stichting Beheer Derdengelden are free to remit amounts which have been transferred by or on behalf of the client into a clients’ account or trust account into a clients’ account or trust account with another Dutch bank.
9.4 Schaap & Partners et al. shall in no circumstances be held liable for the consequences of a bankruptcy or moratorium, if any, of the bank with which the clients’ account or trust account is held and into which payments have been made by or on behalf of the client or into which amounts have been transferred by or on behalf of the client, except in the case of wilful misconduct, gross negligence or wilful recklessness on the part of Schaap & Partners et al.
10. Final provisions
10.1 Any agreements between the client and Schaap & Partners and the other legal relationships as referred to under 2 are subject to Dutch law.
10.2 Any dispute will be settled exclusively by the competent court in Rotterdam, the Netherlands. Schaap & Partners is nonetheless entitled to submit any dispute to the competent court in the place of business of the opposite party in the dispute in question in the Netherlands.
10.3 These General Terms and Conditions have been drawn up in Dutch and English. In the event of any difference in substance or interpretation between the two texts, the Dutch text will be binding.
Filed at the office of the District Court in Rotterdam on February 1. 2011.