GENERAL TERMS AND CONDITIONS as adopted by Daamen de Kort van Tuijl Notarissen B.V.
Filed by DKT with the court registry of the District Court Zeeland-West-Brabant on the second of April 2021 under number 10/2021.
Filed by DKT with the court registry of the District Court Zeeland-West-Brabant on the second of April 2021 under number 10/2021.
DefinitionsIn these general terms and conditions, the following terms have the following meanings:
- "DKT": the private company with limited liability Daamen de Kort van Tuijl Notarissen B.V., with its registered office and principal place of business at Ellen Pankhurststraat 1m, 5032 MD Tilburg, listed in the Commercial Register under number 73700584, also trading under the name of Daamen de Kort van Tuijl Notarissen and DKT Notarissen;
- "stichting" (foundation): Stichting executele, bewind en vereffening DKT Notarissen, with its registered office and principal place of business at Ellen Pankhurststraat 1m, 5032 MD Tilburg, listed in the Commercial Register under number 55285821;
- “KNB”: Royal Notarial Association (Dutch: Koninklijke Notariële Beroepsorganisatie), with its registered office at Spui 184, 2511 BW The Hague.;
- “Client”: the client, being one or more natural persons or artificial persons who instruct DKT to undertake work;
- "WNA": Notaries Act (Dutch: Wet op het notarisambt);
- “WWFT”: Money Laundering and Terrorist Financing Prevention Act (Dutch: Wet ter voorkoming van witwassen en financieren van terrorisme).
Article 1 Applicability of these general terms and conditions
- These terms and conditions apply, with the exclusion of any other terms and conditions, to all offers made by DKT, instructions accepted, any follow-up instructions whether or not relating to the earlier instruction, and all other work carried out by DKT, as well as to all other legal relationships between DKT and third parties.
- These general terms and conditions have also been agreed upon with respect to third parties that have been engaged for the performance of the instruction (which also includes third parties with which DKT has entered into a partnership), the foundation, as well as all civil-law notaries, all junior civil-law notaries and all other persons that are or have been employed by or on behalf of DKT, including the shareholders and directors of DKT as well as the shareholders and directors of the holding companies of DKT, including their legal successors.
Article 2 Contract for professional services
- The instruction will only be deemed to have been given to and accepted by or on behalf of DKT and the services will only be provided on behalf of DKT. If it is the (implicit) intention, or if it is expected, that an instruction will be carried out by one or more specific persons, this does not in any way exclude or restrict the right of DKT to engage other persons in connection with the carrying out of the instruction
- The instructions which are accepted, in whatever form, by or on behalf of the foundation are also deemed to have been given to and accepted by or on behalf of DKT and the services are only provided subject to these general terms and conditions and the services are only supplied on behalf of DKT.
- The legal relationship between DKT and the Client is a contract for professional services within the meaning of article 7:400 ff. of the Dutch Civil Code, whereby DKT undertakes to the Client to provide specific services.
- The contract for professional services is entered into for an indefinite period of time, in so far as the contents, nature or object of the instruction do not provide otherwise.
- If an instruction is given by more than one (1) person, each person will be jointly and severally liable for the amounts owed to DKT by virtue of that instruction.
- In the event of the death of the Client, his rights and obligations will pass to his successors by universal title.
- 7. An instruction is also deemed to be accepted if no confirmation of instruction from the Client has been received after the instruction has been confirmed by the Contractor to the Client, and if the Client takes receipt of a draft deed drawn up on behalf of DKT or a personal recommendation. The instruction will be carried out for the benefit of the Client only. Third parties cannot derive any rights from the content of the work carried out.
Article 3 Fee and costs
- Unless agreed otherwise, the fee is determined by multiplying the number of hours spent on the instruction by the hourly rate commonly used by DKT for the case concerned, plus costs of third parties. The hourly rate is reviewed from time to time.
- DKT is not allowed to charge the costs of its work to a different instruction, other part of the instruction or any other person than the Client.
- DKT is also entitled to charge the Client for the costs of the work which is carried out and which does not result in a notarial deed. In that case the fee is determined in the manner set out above.
- If the work carried out by DKT is covered by a purchase agreement, DKT will charge the fee in accordance with the provisions in the purchase agreement concerning the sharing of the costs between the respective parties, and in the absence of such provision in the purchase agreement, with the buyer.
- DKT is also entitled to charge anyone applying for an extract and/or first authenticated copy of a deed or duplicates of documents held by DKT, expressly including invoices and expense accounts, for any costs involved.
- When carrying out the instruction, DKT is entitled to engage third parties at the expense and risk of the Client. The choice of third parties to be engaged by DKT will, where possible, take place in consultation with the Client and with due care. DKT is not liable for any negligence on the part of these third parties. The Client grants DKT the authority to enter into an agreement with the third party concerned for and on its behalf and to accept any restrictions of liability agreed by third parties for and on behalf of the Client. Any costs of third parties will be at the expense of the Client.
Article 4 Payment
- Unless provided otherwise, the fee due as well as any disbursements must be in the possession of DKT not later than the date on which the deed is signed, and, more specifically, before the date of signing, if the deed involves a monetary transaction. If this is not the case, invoices must be paid within fourteen (14) days after they have been dispatched.
- All payments must be made without suspension and/or setoff.
- DKT is entitled to make interim claims. Disbursements and expense claims of third parties may be charged immediately
- DKT reserves the right to change agreed (hourly) rates annually on 1 January.
- DKT is also entitled to require advance payment of fees and disbursements. These interim and advance invoices must also be paid within fourteen (14) days after they have been dispatched.
- The correctness of the invoices and expense claims may only be disputed if this is done within thirty (30) days after the invoice date.
- If a payment term is exceeded, the Client will be in default and liable for all expenses incurred by DKT in connection with the recovery of these costs. As from the moment of default, the Client must also pay interest on the principal sum and the costs owed by the Client. The interest rate is one (1) percent a month, with part of a month counting as a full month.
- Unless the Client immediately objects in writing, DKT is entitled to set off or use the distributable part in the balance on the designated account of DKT to which the Client is entitled for the payment of all that which the Client owes to DKT.
- All extrajudicial costs incurred in connection of the recovery of the expense claims will be charged to the Client, as will the legal costs. A minimum amount of fifteen (15) percent of the amount to be recovered is used. If the Client is a natural person, who does not carry on a trade or business, these extrajudicial costs will, contrary to the provisions in the preceding sentence, be calculated in accordance with the graduated scale in the Extrajudicial Collection Costs Decree (Dutch: Besluit Buitengerechtelijke Incassokosten), according to which these costs will at all times be at least € 40.
Article 5 Payment and money management
- A claim against DKT on account of the payment of money by virtue of a legal act included in a deed cannot be assigned or pledged. Pursuant to the professional rules and rules of conduct, DKT only pays money to the person acting as a party to the deed and/or may claim payment by virtue of the legal act included in the deed, unless these rules provide otherwise.
- When carrying out an instruction, DKT is entitled to retain possession of money. DKT will pay this money into a bank account as referred to in article 25 of the Notaries Act (WNA), the designated account. DKT is not liable if the bank fails to meet its obligations.
- As stipulated in article 15 of the Regulations concerning professional rules and rules of conduct (which Regulations are based on article 61 of the WNA), DKT must pay to the beneficiary the interest it has received on money it has managed for a longer period of time, less expenses. In clarification of this, DKT confirms that, for the purpose of this Regulation, it pays interest on money if this money has been managed by DKT for six (6) days or longer. If DKT manages money and the bank charges interest or other costs on this money, DKT will pass on this interest and these costs to the person entitled to this money. The interest charged or to be charged by the bank on money managed by DKT will be passed on by DKT (as a flat rate), unless it has been agreed otherwise.
Article 6 Liability DKT
- If the work carried out as part of the instruction given to DKT contains one (1) or more errors, the compensation to be paid to the (Client(s) and third parties in connection with that work will be limited to the amount to which DKT is entitled by virtue of the professional liability insurance taken out, plus DKT’s excess under that insurance. The applicable professional rules and rules of conduct include minimum standards which the insurance must comply with.
- If DKT has no insurance cover for the damage, including any payment errors that are not covered by insurance, the liability will be limited to a maximum amount of € 100,000,--
- The limitation of liability referred to in paragraph 1 also applies if DKT is liable for errors made by any third parties it has engaged or for the improper functioning of equipment, software, data files, registers or other matters that DKT uses in the performance of the instruction, without any exceptions
- The limitation of liability referred to in paragraph 1 also applies if DKT has wrongfully refused to provide its service and this results in damage.
- All rights to compensation will in any case lapse twelve months after the event in respect to which the liability arises, directly or indirectly; this does not exclude the provisions in article 6:89 of the Dutch Civil Code.
- The limitation of liability as referred to in this article also applies if a message sent in digital form is not transmitted and/or received correctly or completely or in time.
- A claim for damages cannot be brought against cannot be brought against employees, civil-law notaries, shareholders and directors of DKT, and other persons employed by, for or on behalf of DKT or with whom a partnership has been entered into, nor against directors of artificial persons who are responsible for carrying out the work or with whom a partnership has been entered into.
Article 7 Applicable professional rules and rules of conduct, Money Laundering and Terrorist Financing Prevention Act (WWFT) and General Data Protection Regulation (GDPR)
- DKT complies with all professional rules and rules of conduct. An explanation of these rules can be found in the consumer brochure ‘Spelregels boor Notaris en Consument’, compiled by the KNB (Royal Notarial Association) in consultation with the Consumers’ Association and Association of Homeowners. This brochure can be found on www.knb.nl and is available from DKT on request.
- When carrying out the instruction, DKT also complies with the provisions of the WWFT. In connection with this, DKT is obliged to undertake a customer due diligence procedure, which procedure involves, among other things, establishing and verifying the Client’s identity. This Act also requires DKT to report any situations or transactions of an unusual nature to the Financial Intelligence Unit-Nederland (FIU-Nederland). According to this Act, DKT is not allowed to inform its Client of such a report. DKT will never be liable for any damage a Client has sustained, sustains or will sustain due to an undue claim under the WWFT, unless arising from an intentional act or gross negligence on the part of DKT.
- By giving the instruction, the Client confirms that he is familiar with the aforementioned obligations arising from the WWFT and gives DKT permission to perform the necessary acts.
- By giving the instruction, the Client confirms that he is also familiar with the fact that DKT collects data concerning persons who are directly or indirectly involved with the services provided by DKT. The privacy statement can be found on the website of DKT, where it is explained how the office handles the personal data within the framework of the General Data Protection Regulation.
Article 8 Applicable law, complaints and disputes procedure
- The instruction, service and any liability claims are exclusively governed by Dutch law.
- The service of the civil-law notary is also subject to the complaints and disputes procedure of the notarial profession.
- If the Client has complaints about the work carried out by DKT, or about the expense claim submitted by DKT, he must first report this to the complaints officer of DKT. A complaints procedure form is available from DKT.
- If, in the opinion of the Client, the complaint is not dealt with or not dealt with in a sufficiently satisfactory manner, the Client may, in so far as it concerns a complaint as referred to in the Reglement Geschillencommissie Notariaat (Disputes Committee for the Notarial Profession), appeal to the Disputes Committee of the KNB or, for disciplinary complaints, to the applicable Notarial Chamber (see also www.knb.nl and www.degeschillencommissie.nl) The Client is also entitled to apply to the civil court.
- Disputes submitted to the civil court will be resolved exclusively by the Dutch court of DKT’s place of business, on the understanding that, in accordance with the preceding paragraphs, the Client is also entitled to appeal to the Disputes Committee.