General Terms and Conditions
Article 1 Applicability
1.1 Kouwenaar Advocatuur is the trading name of A. Kouwenaar-de Coninck, a natural person, with a registered office and principal place of business in Nijkerk and active in the conducting of a legal practice in the broadest sense of the word. The provisions in these General Terms and Conditions do not only apply to it but also to those who are or have been employed by Kouwenaar Advocatuur as an employee or commissionee or otherwise called in by Kouwenaar Advocatuur in the context of performing any engagement. The same applies to previous partners and employees of Kouwenaar Advocatuur, including their possible heirs, even if they are held liable, or after they have left Kouwenaar Advocatuur.
1.2 These General Terms and Conditions apply to any engagement agreements, including those concerning follow-up engagements, entered into with Kouwenaar Advocatuur, unless explicitly agreed otherwise in writing prior to such agreement being entered into. The applicability of other terms and conditions (under any name whatsoever) – either of any client or of any third party – is explicitly excluded.
1.3 The client who might allow a third party to take cognisance of any activities performed by Kouwenaar Advocatuur for his or her benefit (for instance in the form of advice, agreements or procedural documents) should notify such third party that the respective activities are or have been performed under the applicability of these General Terms and Conditions. Such a third party will then also be held to comply with the provisions of these General Terms and Conditions if the substance of the activities performed by Kouwenaar Advocatuur for the client are applied by them in any way whatsoever. The copyright on the substance of the activities performed by Kouwenaar Advocatuur remains vested in Kouwenaar Advocatuur.
Article 2 Engagements
2.1 Any engagements will be deemed granted and accepted by Kouwenaar Advocatuur. This will also apply if the client and/or Kouwenaar Advocatuur has/have the implicit or explicit objective that the engagement is or will be performed by a specific person. The application of both Article 7:404 of the Dutch Civil Code, in which an arrangement has been included for the latter case, and Article 7:407, paragraph 2 of the Dutch Civil Code, under which joint and several liability is established if two or more persons have accepted an engagement, is explicitly excluded.
2.2 At all times, Kouwenaar Advocatuur is entitled to have its employees perform any engagement granted to it as well as to call in the assistance of or to use the services of any third party, such as bailiffs, loss adjusters, accountants and tax consultants. Kouwenaar Advocatuur will observe due care when it calls in any afore-mentioned third party.
2.3 The client can terminate the agreement at all times. Kouwenaar Advocatuur can terminate the agreement only in the event of serious reasons and if it is not prepared on reasonable grounds to perform the engagement in conformity with the client’s wishes.
2.4 The client agrees to provide Kouwenaar Advocatuur in time with all useful and necessary details or information required for the proper execution of this agreement, and will fully cooperate, including in the provision of any details etc. The client vouches for the accuracy and entirety of any details and information provided to Kouwenaar Advocatuur.
2.5 Without prior approval in writing, the client shall not multiply, publish and/or exploit any advice, contract or other intellectual property created by Kouwenaar Advocatuur.
Article 3 Identification obligation
3.1 By virtue of the Dutch Act on Identification in Service-Provider Industries (Wet Identificatie bij Dienstverlening) Kouwenaar Advocatuur is held to identify its clients properly. The client is mandated to provide Kouwenaar Advocatuur with any documents required for the purpose.
3.2 Kouwenaar Advocatuur reserves the right to suspend the performance of an engagement until the point at which the documents required for proper identification are provided.
Article 4 Fees and advances
4.1 All engagements are performed on the basis of hourly rates agreed upon in advance, unless explicitly agreed on otherwise. The fee payable will be subject to increases due to office costs, other advances (costs actually incurred and paid by Kouwenaar Advocatuur for the client’s benefit in the context of performing the engagement, such as court fees, bailiff expenses, extract costs, travel costs) and VAT.
4.2 Kouwenaar Advocatuur is entitled to change the afore-mentioned hourly rates annually per 1 January of the next calendar year. The client will be notified of such change as soon as possible.
Article 5 Payment
5.1 Kouwenaar Advocatuur will submit its statement of expenses to the client on a regular basis, unless the nature of the services requires otherwise or unless agreed otherwise with the client.
5.2 If required by the nature of the engagement, Kouwenaar Advocatuur may demand an advance from the client before proceeding or continuing with performing the engagement. Such advance will be settled by way of future statement(s) of expenses. If a client is assisted on the basis of an assignment of counsel, the (probable) personal contribution payable, increased by VAT, will be charged as an advance.
5.3 Statements of expenses are to be paid to Kouwenaar Advocatuur within 14 days after these have been received, with the exception of statements of advances, which need to be paid immediately.
5.4 If a statement of expenses is not paid within the payment term, the client will be in default automatically without a notification or notice of default being required. In such cases, if the client is a private individual the client has to pay the statutory interest on the amount of the expenses in the statement. In the case of a company, however, the prevailing commercial interest should be paid.
5.5 Any judicial and extrajudicial costs reasonably incurred for collecting unpaid statements of expenses will be charged to the client, at a minimum of 15% of the amount to be collected.
5.6 In the event of a default of payment, Kouwenaar Advocatuur will be entitled to discontinue or suspend all activities currently being performed on behalf of the client’s benefit immediately, also with respect to any other engagements being performed at that point in time by Kouwenaar Advocatuur for the client – with the exception of any cases in which the Code of Conduct for Lawyers (Gedragsregels voor Advocaten) prohibits discontinuation or suspension of such activities – but without Kouwenaar Advocatuur becoming liable for any damages towards the client in any way whatsoever.
Article 6 Liability
6.1 Any claims by clients and any third-party claims will be void if these are not submitted to Kouwenaar Advocatuur in writing and with reasons stated within six months after the client and/or third party became aware or could reasonably be aware of the facts on which the claim is based.
6.2 Kouwenaar Advocatuur is insured against the risk of any professional liability for such amounts as prescribed by the Dutch Bar Association (Nederlandse Orde van Advocaten).
6.3 The liability of Kouwenaar Advocatuur is limited to the amount paid by virtue of the professional liability insurance taken out by Kouwenaar Advocatuur, subject to any increase by way of the policy excess. Kouwenaar Advocatuur shall make the insurances taken out available for inspection on request.
6.4 If, regardless of the reason, no insurance benefit is paid, the liability of Kouwenaar Advocatuur towards the clients will be limited to the fee charged by Kouwenaar Advocatuur with respect to the respective engagement, with a maximum of €25,000. The liability of Kouwenaar Advocatuur towards any third party is limited to €5,000.
6.5 Kouwenaar Advocatuur is not liable for any third-party errors, mistakes or shortcomings as referred to in Article 2.2.
6.6 The client indemnifies Kouwenaar Advocatuur and any third party engaged by Kouwenaar Advocatuur against claims made by a third party – including any reasonable costs of legal assistance – which third-party claims it is suffering or has suffered damage due to or in connection with the activities performed for the client, unless the damage is due to the intent or gross negligence of Kouwenaar Advocatuur.
6.7 Kouwenaar Advocatuur is not liable towards the client for a notification by Kouwenaar Advocatuur in the context of the Disclosure of Unusual Transactions (Financial Services) Act (Wet Melding Ongebruikelijke Transacties) and as such will be indemnified by the client against any claims of a third party which claims it is suffering or has suffered damage due to such notification, unless the damage is due to the intent or gross negligence of Kouwenaar Advocatuur.
6.8 If any third party, as referred to in Article 2.2, restricts or excludes its liability in connection with it being called in by Kouwenaar Advocatuur to perform an engagement, Kouwenaar Advocatuur will be entitled, without any consultation with the client or without the client’s consent, to accept such restriction or exclusion also on behalf of the client.
Article 7 Archiving
7.1 Original documents will be provided by Kouwenaar Advocatuur to the client at the end of the engagement at the client’s request, unless the law or the specific provisions of the Dutch Bar Association (Nederlandse Orde van Advocaten) stipulate otherwise. Kouwenaar Advocatuur does not nor will not accept any responsibility or risk after transfer of the original documents to the client and in such case advises that any judicial documents be kept safely. Upon the end of the engagement, Kouwenaar Advocatuur shall keep the dossier for a term of at least seven years.
Article 8 Disputes
8.1 In the (unhoped-for) event that a client has any complaints about the services provided by Kouwenaar Advocatuur, Kouwenaar Advocatuur prefers to discuss such complaints personally with the client first and then to submit the complaints to an internal complaint handling official. The client is given an opportunity to make an appointment for this purpose. This meeting will be free of charge for the client and is part of the internal complaint handling procedure. The complaint handling regulations of Kouwenaar Advocatuur will be sent to the client at the client’s first request. If this (interview) does not lead to a solution, the dispute, including any statement of expenses disagreement, will be settled in conformity with the Rules of the Disputes Committee for the Legal Profession (Reglement Geschillencommissie Advocatuur). If the dispute is about an engagement of a private client, the said Rules provide binding advice, unless the client submits the complaint to the regular court within one month after the complaint has been handled by the lawyer. In the event that payment is awarded related to a claim by a private client, binding advice will only apply if the client pays the outstanding amount to the Disputes Committee. If he/she does not do so, arbitration will apply to the award. If the dispute is about an engagement of a business client, the Rules will provide for arbitration.
8.2 The legal relationship to which these General Terms and Conditions apply, are subject to Dutch law. Any disputes between Kouwenaar Advocatuur and the client will be in the first instance exclusively submitted to the competent court in the district of Utrecht. If Kouwenaar Advocatuur acts as the plaintiff, however, it will be entitled to submit the dispute in derogation of the foregoing to the competent foreign court as applicable for the client.
These General Terms and Conditions will be sent to the client by Kouwenaar Advocatuur before or at entering into the written acknowledgement of the engagement, or they can be consulted on the website: www.kouwenaar-advocatuur.nl