Terms and conditions

I. - SCOPE

These Terms and Conditions are applicable to all professional relationships between the professional expert and the client.

Derogations must be expressly accepted in writing by both parties.

In case of conflict between the contents of these Terms and Conditions and the engagement letter, the engagement letter takes precedence.

In accordance with common law, the liability of the professional expert can only be challenged for engagements where it is shown that they were accepted.

II. - CONCLUSION OF THE AGREEMENT

Unless otherwise agreed in the engagement letter, the agreement is concluded and will commence on:

  • either from the moment the professional expert takes receipt and countersigns the engagement letter, signed by the client.
  • or from the moment that the professional expert starts the performance of the engagement at the request of the client, if this means that it commences at an earlier time.

If the professional expert has not received this engagement letter signed by the client, all professional relationships between the parties are in each case governed by these Terms and Conditions and the engagement letter, from the moment and insofar as these contractual documents were returned to the client either by letter, fax or email or in person by means of delivery against receipt.

III. - DURATION AND TERMINATION OF THE AGREEMENT

3.1. Recurring engagements

3.1.1. Definition

"Recurring engagement" is understood to mean an engagement that consists of successive performances of the same kind which must be carried out within certain pre-determined periods.

3.1.2. Duration and end of the agreement

Unless the engagement letter mentions a time period, the agreement is deemed to be concluded for an indefinite period.

Both parties can terminate the agreement at any time, under the following conditions:

  • the other party must be notified of the termination by registered letter,
  • a notice period of three months must be observed.

The provisions set out in the engagement letter and the these General Terms and Conditions remain in full force during the notice period.

A separate contract may be concluded for performances to be supplied after termination of the agreement, but relating to the period in which the agreement was still in force.

3.2. Non-recurring engagements

3.2.1. Definition

Engagements that do not fall under the definition as provided for in point 3.1.1. are considered as non-recurring engagements.

3.2.2. Duration and end of the agreement

Unless proven otherwise, the agreement regarding a non-recurring engagement is deemed to be a fixed-term engagement.

It will end by performing the engagement and, if applicable, in view of the nature of the engagement, by supply of the agreed performance.

In application of Art. 1794 of the Belgian Civil Code and, where appropriate, by way of derogation of Art. 2004 of the Belgian Civil Code, the client is entitled to terminate the agreement prematurely, provided the client pays the professional expert for:

  • the costs and fees corresponding to the work already performed,
  • everything the professional expert could have earned in the performance of the engagement.

3.3. Follow-up procedure

After termination of the agreement, all document and records belonging to the client will be made available to client or its authorised representative.

IV. - IMMEDIATE TERMINATION FOR SPECIFIC REASON(S)

4.1. In all cases, the professional expert can terminate the agreement at any time without notice and without compensation, if there are reasons that make continuation of the professional relationship impossible, such as:

  • circumstances that jeopardise the independence of the professional expert,
  • circumstances that make the performance of the engagement impossible in accordance with professional and ethical standards,
  • the apparent shortcoming(s) of the client in respect of its own commitments as defined in Art. 6 (2) of these Terms and Conditions and in the engagement letter,
  • in case the client has been granted a moratorium, is in dissolution proceedings or any apparent insolvency on the part of the client.

The reasons justifying immediate termination of the agreement must be communicated to the client. Depending on the circumstances, the professional expert can issue a warning or reminder to the client prior to making his decision.

When terminating the agreement, the professional expert must alert the client to any legal acts that are urgent and necessary to safeguard the client's rights, and for which he had received an engagement.

4.2. In case of bankruptcy of the client, the agreement is terminated automatically.

4.3. The client can at any time, without complying with a notice period and without having to pay compensation, terminate the agreement if the professional expert manifestly fails to perform his commitments, as defined in Art 6 (1) of these Terms and Conditions and, where applicable, in the engagement letter.

The client will in any case precede its decision by a written notice of default to the professional expert.

V. - SUSPENSION OF THE PERFORMANCE OF OBLIGATIONS

In the event of non-compliance, incorrect or late performance of obligations by the client, for example in case of non-payment of fees or advance(s) in accordance with Article 7 below, the professional expert is entitled to suspend or postpone performance of his obligations until the client has fulfilled its obligations.

The professional expert will inform the client informed of this in writing.

If, following the start of the suspension or postponement of performance, legal acts are urgently required to safeguard the rights of the client, and for which the professional expert had received an engagement, he will bring this to the client's attention.

All costs and expenses arising from the suspension or postponement will be borne by the client. The professional expert is entitled in all circumstances to payment of the fees and costs related to work already carried out.

VI. - RIGHTS AND OBLIGATIONS OF THE PARTIES

6.1. Rights and obligations of the professional expert

The professional expert will perform the engagements with which he has been entrusted with due care and in complete independence, under a best-efforts obligation.

He will ensure that the services performed are supplied according to the ethical and other professional standards of the Institute, taking into account the relevant regulations and legislation in force at the time of performance of the agreement.

The professional expert cannot be held liable for the consequences of any subsequent changes - where appropriate retroactively - to these legal and regulatory provisions.

Nor is he responsible for the consequences of any shortcomings, errors or violation which would have been committed before his intervention.

The performance of the engagement is not - unless otherwise agreed - specifically aimed at detecting possible fraud.

Unless otherwise agreed, the professional expert is not required to check the accuracy and completeness of the information provided by the client or its employee(s), nor the reliability of the notarial deeds, contracts, inventories, invoices and supporting documents of any kind, which the client has entrusted or submitted to him as evidence or as documents which should serve as such.

The professional expert may be assisted by employees or experts of his choice and engagements resulting from the agreement may be performed wholly or partly by (an) employee(s) or expert(s). In accordance with Article 33 of the Act dated 22 April 1999 regarding the accounting and tax professions, the professional expert has taken out civil professional liability insurance with a policy that is approved by the Board of the Belgian Institute of Accountants and Tax Consultants.

The professional expert and his authorised representative(s) or employee(s) are bound by professional secrecy, in accordance with Article 58 of the Act of 22 April 1999 with regard to the accounting and tax professions and Article 32 of the Royal Decree of 1 March 1998 establishing the ethics of accountants, although the foregoing is subject to the provisions set out in the legislation and regulations on the prevention of the use of the financial system for the purpose of money laundering and terrorist financing.

6.2. Rights and obligations of the client

The client undertakes:

  • to provide all documents, data and information necessary for the performance of the engagement to the professional expert in good time;
  • to carry out the work that - the case being - may be expected of the client based on the engagement letter.
  • to bring any information, events or developments that could have any effect on the performance of the engagement to the attention of the professional expert;
  • if requested to do so by the professional expert, to confirm in writing that the documents, information and explanation provided are accurate and complete;
  • to verify that the documents and statements provided by the professional expert are consistent with its expectations and with the information it provided, and if this is not the case, to notify the expert immediately.

6.3. Non-solicitation clause

The client and the professional expert expressly undertake not to employ, directly or indirectly, an employee or self-employed employee of the other party who is involved in the performance of the agreement, or to have him/her carry out work, directly or indirectly (e.g. through a legal person) outside the framework of an agreement between the client and the professional expert, without the prior written consent of the other party, for the entire duration of the agreement and during a 12-month period after its termination, regardless of the reason for termination.

Any breach of this non-solicitation clause will give rise to a one-off flat-rate fine amounting to the cost of one year's salary of the employee or the self-employed employee.

VII. - FEES

7.1. Calculation of costs and fees

Costs and fees are calculated in accordance with the legal and regulatory provisions in force and applicable to the professional expert and provided for in the engagement letter, of which these Terms and Conditions form an integral part.

The costs and fees are payable as the work for the client is performed, even if the engagement is not necessarily finished.

7.2. Payment terms

Invoices and/or fee notes are payable within 30 after the invoice date.

Late payments, automatically and without requiring formal notice, give rise to:

  • an interest charge equal to that specified in Article 5 of the Act on combating late payment in commercial transactions of 2 August 2002,
  • a contractual fine, the amount being fixed at 10 % of the unpaid amounts, but being at least EUR 250.

7.3. Advances

The professional expert may request one or more advances. These advances are then offset against the final statement of costs and fees.

7.4. Disputing the statement of costs and fees

All disputes relating to costs and fees must be sent to the professional expert by sending a letter together with reasons sent by registered post within 15 days of the invoice date. If a letter disputing the costs and fees is not received by the professional expert by this deadline, then it is assumed that the client agrees with the invoiced services.

VIII. - LIABILITY

Except for the engagements as referred to in Article 17 (4), of the Act on establishing an Institute of Registered Auditors and organisation of public supervision of professional auditors, coordinated on 30 April 2007, the entire (contractual, non-contractual or other) liability for performance of the engagement is limited to the amount/amounts covered by the professional liability insurance taken out by the professional expert, including the professional expert's possible excess for that insurance.

If, for any reason, the liability insurer does not pay out, the entire liability will be restricted to three times the amount of the invoiced performance fee. In the case of a recurring engagement, this coefficient will be applied to the fee amounts invoiced to the client during the 12-month period preceding the damage-causing event, or alternatively, from commencement of the engagement being performed if this period is shorter than one year.

These limitations also apply to all claims arising from performance of the engagement which would potentially be brought against all persons, partners, directors and/or self-employed staff who have the status of an insured person within the meaning of the relevant insurance policy.

These limitations do not apply if the liability is the result of an error committed with fraudulent intent or with the intention of causing harm. As a result, these limitations expressly apply to any liability arising from all other errors for which the professional expert, his partners, directors and/or self-employed staff could be held liable.

These limitations do not apply if the liability results from an error by the professional expert, committed with fraudulent intent or with the intention of causing harm.

If it appears that two or more cases of damage arise from one and the same error, they are considered as a single liability case and liability is therefore limited to the highest amount of the amounts applicable to the relevant engagements or agreements.

Except for otherwise required by mandatory legal provisions, damage resulting from (a) a loss of income, goodwill, trade opportunities or anticipated savings or benefits, (b) the loss or corruption of data, or (c) indirect loss or damage, does not give rise to compensation.

IX.- APPLICABLE LAW AND SETTLEMENT OF DISPUTES

The interpretation and performance of the agreement are governed by the laws of Belgium. Any dispute of any kind whatsoever, belongs to the jurisdiction of the courts and tribunals of the judicial district where the the professional expert has its registered office

Disputes regarding costs and fees may be submitted to the Arbitration Tribunal of the Belgian Institute of Accountants and Tax Consultants, which will rule by way of a final decision, as a court of both the first and final instance and without procedural costs.