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GENERAL TERMS AND CONDITIONS 2020
M.E.L.B.A. Advocatuur / MELBA Netherlands Advisory
1. ENGAGEMENT AND GENERAL CONDITIONS
1.1 The present General Conditions shall constitute an integral part of any engagement executed between an assignor (hereafter: “Client”) and and/or Mauritius B. M. Wijffels and/or any entity belonging to M.E.L.B.A. Advocatuur / MELBA Netherlands Advisory of the Netherlands (hereafter: “MELBA”) as well as of all ensuing and/or related agreements between Client and MELBA and of all offers made and/or quotations and invoices issued by MELBA with the explicit exclusion of Client’s or any other general terms and conditions.
1.2 An engagement comes into existence through the execution of an engagement letter or engagement agreement between Client and MELBA. In the absence of an engagement letter, the present General Conditions shall equally apply.
1.3 Any stipulations deviating from these General Conditions shall only be valid if and to the extent that MELBA has explicitly confirmed them to Client in writing. In case of conflict between the provisions of an engagement letter and these General Terms and Conditions, the latter shall at all times prevail.
1.4 Should any stipulation in these General Terms and Conditions or in a letter of engagement or an agreement of engagement be or become null and void, these General Conditions or any such letter or agreement shall otherwise remain in full force and Client and MELBA shall liaise to promptly replace such stipulation with a valid stipulation remaining as closely as possible to the original stipulation.
1.5 These General Conditions shall equally apply to any legal successors of both Client and MELBA.
2. OBLIGATIONS OF CLIENT
2.1 In order to ensure the proper execution of the engagement, Client is obliged to provide MELBA with all data, documents and information required by MELBA and in the form specified by MELBA. Failure by Client to comply with this obligation releases MELBA from its obligation to (continue to) perform the engagement. Additional costs incurred through Client’s failure to provide, provide properly or provide in time all data, documents and information required by MELBA shall be for the account of Client.
2.2 Client is obliged to promptly inform MELBA of any fact or circumstance of which Client can reasonably assume that it may be of importance or directly or indirectly relevant to the performance of the engagement.
2.3 Client vouches for the accuracy, completeness and integrity of the data, documents and information provided to MELBA by or on behalf of Client.
2.4 Client shall provide MELBA with all information required by MELBA for MELBA to comply with any legal or compliance requirement in any jurisdiction relevant to the engagement at hand and in particular the information required to determine Client’s identity and track-record.
2.5 Client shall pay any invoice by MELBA within fifteen days following the date on the invoice into the bank or giro number designated for this purpose on the invoice, without any deduction, suspension or set-off, failing which payment Client shall be automatically in default. All (extra) judicial costs relating to the collection of invoice payments shall be borne by the Client, with a minimum of fifteen percent (15%) of the collectable amount. Court costs shall not be limited to the costs of proceedings but shall be wholly for Client’s account if Client is ruled to be wholly or largely at fault.
2.6 Client shall reimburse MELBA for any court fees, taxes, stamp duties as well as any reasonable costs, expenses and non-legal fees incurred by MELBA in the provision of the services provided under the engagement subject to written proof thereof by MELBA.
2.7 MELBA is entitled to demanding from Client – either before or during the performance of the engagement – full or partial advance payment or the provision of security, failing which MELBA shall be entitled to suspend the performance of its obligations until such payment has been effected.
2.8 Payments by Client pursuant to sections 10., 11. and 12. above are non-refundable, except in case of:
(i) MELBA’s wilful intent or gross negligence;
(ii) early termination of the engagement by Client for any reason other than MELBA’s wilful intent or gross negligence, in which case MELBA shall be entitled to withhold the amount representing the hours effectively spent by MELBA during the engagement against the then current hourly rate in addition to any amounts due by Client to MELBA pursuant to section 11. above, notwithstanding any other entitlements to compensation MELBA may have under these general terms and conditions and/or the law; and
(iii) early termination of the engagement by MELBA on the grounds of Client remaining in breach of any of its obligations under these General Terms and Conditions after written request by MELBA to comply providing a reasonable term thereto, in which case MELBA shall be entitled to withhold the amount representing the hours effectively spent by MELBA during the engagement against the then current hourly rate in addition to any amounts due by Client to MELBA pursuant to section 11. above, notwithstanding any other entitlements to compensation MELBA may have under these general terms and conditions and/or the law.
3. PERFORMANCE OF THE ENGAGEMENT
3.1 MELBA shall execute any engagement to the best of its abilities and with the proper care due by any professional without ever guaranteeing that any particular result be achieved. No communication between Client and MELBA, irrespective of its contents, shall be read to comprise a statement to the contrary.
3.2 Periods in which activities are scheduled to be completed shall only be considered deadlines provided Client and MELBA have explicitly agreed so in writing.
3.3 An engagement letter or engagement agreement cannot be terminated by Client on the grounds that a scheduled period for completion has been exceeded, unless it has been established that the performance of the engagement has become permanently impossible or unless MELBA fails to complete the engagement within a reasonable period notified by Client to MELBA in writing at the end of the originally agreed to period.
4. ENGAGEMENT OF THIRD PARTIES
4.1 MELBA shall determine the manner in which and possibly by which auxiliary staff, advisors or consultants the engagement shall be executed.
4.2 Notwithstanding what is provided for in these General Conditions with respect to limitation of liability, the engagement of auxiliary staff by MELBA shall be effected observing due care and as much as possible in consultation with Client.
5.1 MELBA shall be liable towards Client for failure to execute or properly execute an engagement only if and to the extent such failure results from MELBA’s wilful intent or gross negligence.
5.2 Under no circumstance shall MELBA be liable for the performance or advice by any partner, auxiliary staff, advisor or consultant employed in the framework of an assignment including their wilful intent or gross negligence as such parties shall act for their own account and risk.
5.3 Neither MELBA nor third persons employed by MELBA as auxiliary staff, advisor or consultant in the framework of an engagement shall be liable for damages sustained by either Client or any third party, including trade losses and indirect and consequential losses, based on or otherwise resulting from the provision by or on behalf of Client to MELBA of incorrect or incomplete data or information or resulting from an act or failure to act by or on behalf of Client.
5.4 MELBA is entitled to accept on behalf of Client limitations to or exclusion of the liability of auxiliary staff and shall inform Client thereof to the extent necessary.
5.5 Any liability of MELBA shall at all times be limited to: firstly, the amount paid out by its professional liability insurance and secondly, the amount representing the sum total of invoices effectively paid out by Client to MELBA under the relevant engagement, whichever is lower.
5.6 Client must submit to MELBA any claim for compensation of damage or loss within (2) two months of discovery of the damage, failing which any right to compensation shall lapse.
5.7 Client shall indemnify MELBA and hold MELBA harmless against any claim by any third party arising from or in connection with the performance of an engagement by MELBA in favour of Client, including but not limited to shareholders, stakeholders, executive directors, supervisory directors and individuals employed by Client, except to the extent to which such claims result from MELBA’s wilful intent or gross negligence.
5.8 Notwithstanding the provisions in 7.1 and 7.2 below, the engagement shall be performed for the sole benefit of Client and third parties cannot derive any rights from the performance or its contents.
6. INTELLECTUAL PROPERTY RIGHTS
6.1 All rights related to products of the intellect produced by MELBA in the framework of any engagement shall accrue exclusively to MELBA, including but not limited to: legal and/or business advice, legal and/or business solutions, legal and/or business opinions, work methods, (model) agreements, legal and/or commercial drafting, standard or tailored legal or business documents, systems, designs, system designs and software.
6.2 Except prior written consent by MELBA, Client shall not be entitled, either directly or through third parties, to copy, multiply, disclose, share, make available, publish or exploit in whatsoever way or form the products of the intellect referred to in the preceding paragraph or to transfer or record them onto any type of data carrier.
7.1 MELBA undertakes to keep confidential vis-à-vis third parties not involved in the execution of the engagement any data or information provided by Client in relation to the engagement except where MELBA shall be required by law or the order of a competent authority to divulge such data or information. MELBA shall subject any third party engaged for the execution of the engagement to the same confidentiality obligation. MELBA shall not be liable for breach by such third party of its confidentiality undertaking.
7.2 In addition, when acting on its own behalf in disciplinary, civil or criminal proceedings MELBA shall be entitled to use the data and information referred to in the previous paragraph as well as any other information it has become aware of or privy to and which, in its sole discretion, MELBA considers necessary for the protection of its interests in the aforementioned proceedings.
7.3 Except prior written consent by MELBA, Client shall not be entitled, either directly or through third parties, to copy, multiply, disclose, share, make available or publish any information provided by MELBA to Client in whatsoever form, including but not limited to all products of the intellect listed in section 6. above.
8. FINAL PROVISIONS
8.1 Any engagement between Client and MELBA shall be governed by and construed in accordance with the laws of the Netherlands.
8.2 Except as provided for in 8.3 below, any dispute arising out of or in connection with an engagement between Client and MELBA, which Client and MELBA cannot settle amicably, shall be submitted to the exclusive jurisdiction of the competent Court of Law in Amsterdam, Netherlands.
8.3 Notwithstanding the provisions in 8.1 and 8.2 above, MELBA may institute proceedings against Client in any other jurisdiction if it can reasonably be assumed that such proceedings will be conducive to collecting legal fees and/or reimbursement of costs and expenses.