adopted by Daamen de Kort van Tuijl Notarissen B.V., applicable as of October 11th, 2023
Article 1 Definitions
In these general terms and conditions, the following terms are defined as stated below:
- "DKT": The private company with limited liability Daamen de Kort van Tuijl Notarissen B.V., having 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 Daamen de Kort van Tuijl Notarissen and DKT Notarissen.
The shares of DKT are held either directly or otherwise by civil-law notaries and/or junior civil-law notaries. A list of the partners of DKT, at least of the persons that hold shares directly or otherwise in the capital of DKT – which according to international practice are also referred to as “Partners” - will be sent upon request;
- "Foundation": Stichting executele, bewind en vereffening DKT Notarissen, having 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, partnerships or artificial persons that have instructed DKT to perform work, as well as any third party or parties to a certain transaction;
- "WNA": Notaries Act (Dutch: Wet op het Notarisambt);
- “WWFT”: Prevention of Money Laundering and Financing of Terrorism Act (Dutch: Wet ter voorkoming van witwassen en financieren van terrorisme).
Article 2 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, to accepted instructions, any follow-up instructions whether or not connected with the previous instruction, and all other work performed by DKT, as well as to all legal relationships between DKT and third parties.
- These terms and conditions have also been agreed upon for the benefit of third parties that have been engaged for the performance of the instruction (which also includes third parties with whom DKT has entered into a partnership and third parties that carry out work for DKT on a contract basis as self-employed without employees), the Foundation, as well as all civil-law notaries, all junior civil-law notaries, and all other persons who work for or on behalf of DKT or have done so in the past, which also includes the shareholders and directors of DKT, as well as the shareholders and directors of the holding companies of DKT, as well as their legal successors, and apply to these persons as an irrevocable third-party clause stipulated for no consideration within the meaning of article 6:253 of the Dutch Civil Code.
Article 3 Contract for professional services
- The instruction is deemed to have been given to and accepted by or on behalf of DKT and the services are exclusively provided on behalf of DKT. If it is the (tacit) intention or if it is assumed that an instruction will be performed by one or more specific persons, this does not in any way exclude or limit the right of DKT to engage other persons for the performance of instructions; the applicability of article 7:404 of the Dutch Civil Code is therefore excluded;
The applicability of article 7:407, paragraph 2 of the Dutch Civil Code, that joint and several liability is established if two or more persons have received an instruction, and of article 7:409 of the Dutch Civil Code, which terminates the instruction in the event of the death of the contracted party is also excluded.
- The instructions accepted in whatever way by or on behalf of the Foundation are also deemed to have been given to and accepted by or on behalf of DKT; these general terms and conditions apply to the work in question and the work is performed exclusively by DKT.
- DKT is entitled to engage third parties for the performance of the instruction at the expense and risk of the Client. The selection of the third parties by DKT will, where possible, take place in consultation with the Client and with due care. DKT is not liable for any negligence of whatever nature on the part of these third parties, unless arising from an intentional act or gross negligence on the part of DKT. The Client authorises DKT to enter into agreements with third parties for and on their behalf and to accept any restrictions of liability stipulated by third parties for and on their behalf.
- 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 that it will provide specific services.
Acceptance of the instruction by DKT leads to a best-efforts obligation for them to perform and not to an obligation to achieve the result desired by the Client.
- 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 (Clients), each will be jointly and severally liable for the amounts that are due to DKT under that instruction.
Directors, shareholders, (prospective) founders and partners of a legal entity or partnership, as well as the natural person responsible for the policy of a legal entity or partnership, or who has represented a legal entity or partnership without authorisation, are, besides the legal entity or partnership, also regarded privately as a Client. If the legal entity or partnership fails to pay, they will become personally liable for the payment of the expense account or bill, irrespective of whether the expense account or bill, whether requested by the Client or otherwise, is made out in the name of the legal entity or partnership, or in the name of the Client as a natural person. If appropriate, DKT is entitled to withhold the amount to be charged from a security deposit to be paid (whether or not by virtue of a bank guarantee) or deposited amount which has been paid into its designated account.
- In the event of the death of the Client, all their rights and obligations will pass to their successor by universal title. If the client is a partnership or legal entity and ceases to exist, the rights and obligations pass to their legal successor or the (artificial) person which has taken over or continued its activities.
- An instruction is also considered to have been accepted if no confirmation of instruction from the Client has been received:
- if DKT has confirmed the instruction to the Client, or;
- if the Client takes receipt of a draft deed drawn up or personal advice issued by DKT, or;
- if DKT receives a purchase agreement or other agreement which stipulates that DKT will execute the deed of transfer or carry out the notarial work resulting from that other agreement, and begins to perform all relevant activities, in which case all parties to that agreement are considered Clients of DKT.
- Without prejudice to the provisions referred to in article 5, paragraph 2 below, DKT reserves the right to cease or suspend the performance of the given instruction if the Client fails to meet their (other than financial) obligations or if DKT believes that the necessary bond of trust with the Client no longer exists. DKT is not liable for any damage that may occur as a result of this.
- Performance of the instruction given will only take place for the benefit of the Client. Third parties cannot derive any rights from the content of the work carried out.
Article 4 Fee and costs
- The fee is determined by multiplying the number of hours spent on the instruction with the hourly rate generally used by DKT in cases such as these, plus the costs of third parties. The hourly rate is reassessed from time to time.
- Notwithstanding the provisions in paragraph 1, DKT may agree with the Client that a fixed office rate or an offer rate applies to the work to be carried out. If an offer has been submitted for a specific instruction and the Client has accepted it, the offered rate will apply.
Even if a fixed office rate or an offer rate applies, DKT will at all times be entitled to charge the Client for any extra work, based on the extra hours worked, which was not known or foreseeable at the time when the instruction was given, in accordance with the provisions in paragraph 1. DKT can also do this if any delays occur in the delivery of documents and data by the Client or third parties. DKT will, if necessary, inform the Client of this in time. If, in the exclusive opinion of DKT, this extra work is caused by – or due to - one of several Clients, DKT will be entitled to charge that Client for this extra work, without prejudice to the liability of the other Client(s) towards DKT as referred to in article 3 paragraph 6.
- DKT is not allowed to charge the costs of its work to another instruction, another part of the instruction or any party other than the Client.
- Even if the work of DKT does not (eventually) result in the execution of a notarial deed, DTK may charge it to the Client. In that case, the fee will be determined in the manner as set out above.
- If the work of DKT is based on 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 parties and in the absence of such a provision in the purchase agreement with the buyer.
- The costs of the third parties engaged by DKT in the performance of the instruction as referred to in article 3, paragraph 3, will be at the expense of the Client.
Article 5 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, an invoice must be paid within fourteen (14) days after it has been dispatched.
- All payments must be made without suspension and/or set off. As long as an invoice sent to the Client has not been paid, DKT will be entitled to suspend the work, including the issue of copies of deeds that have already been executed, until full payment has been made. DKT may, if the Client is in default as referred to in paragraph 7 below, terminate the instruction immediately and unilaterally.
DKT is not liable for any damage that may result from the suspension or termination of the instruction.
- DKT is entitled to submit interim invoices and/or to charge for an advance payment of fees and disbursements. These interim and advance invoices must also be paid within fourteen (14) days after they have been dispatched.
- Any advance payment will be set off against the last payment under the instruction.
Disbursements and claims of third parties may be charged immediately.
- DKT reserves the right to change agreed (hourly) rates annually on 1 January, also regarding work on current files. In the event of extraordinary (economic) circumstances, for instance high inflation, the (hourly) rates may also be changed on an interim basis.
Any changes in the turnover tax due will at all times be passed on.
- DKT is also entitled – contrary to or in addition to the provisions in paragraph 1 of this article – at any time that:
- requests are made to issue a copy or extract, either as a first authenticated copy or otherwise, or of a duplicate of other documents held by DKT, expressly including invoices and expense accounts, to charge costs immediately to the applicant;
- requests are made for information about personal data or the deletion thereof, in so far as not precluded by any provision that applies to DKT, to charge costs immediately to the applicant;
- The correctness of invoices and expense accounts may only be challenged if this is done within thirty (30) days after the date of the invoice.
- 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. The Client must also pay from the moment of default 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 of the balance on the designated account of DKT to which the Client is entitled for the payment of what the Client owes DKT.
- All extrajudicial costs incurred in connection with the recovery of the claims will be charged to the Client, as will the legal costs. A minimum rate of fifteen percent (15%) 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 € 40.
- DKT is entitled to outsource its receivables management and as such allowed to disclose the personal data of the Client to a collection agency and – if necessary - to any other third parties.
Article 6 Payment and management of funds
- A claim against DKT for the payment of money by virtue of a legal act included in a deed cannot be assigned or pledged in accordance with the provisions of article 10. According to the notarial rules of professional conduct and practice, DKT only makes payments to the person acting as a party to the deed and/or who 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 hold funds in their possession. 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 Regulation on professional conduct (which regulation is based on article 61 of the WNA), DKT must pay to the Client the interest it has received on money it has managed for a longer period of time, less expenses.
In clarification, DKT acknowledges 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 (flat rate) to the person entitled to this money, unless agreed otherwise.
Article 7 Liability of DKT
- If the work carried out as part of the instruction given to DKT contains one or more errors, the total 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 under the terms of the professional liability insurance taken out, plus DKT’s excess under that insurance. This limitation of DKT’s liability will apply irrespective of whether this liability results from an agreement, the law or other legal basis, and also applies if DKT has wrongfully refused to provide its services and this results in damage.
The applicable rules of professional conduct and practice include minimum standards which the insurance must comply with.
- If DKT has no insurance cover for the damage sustained, including the situation of any payment errors that are not covered by an insurance, the joint liability of DKT and the Partners, the (indirect) shareholders of DKT, and of all persons that are or were employed by or for DKT, either as a Partner, employee, adviser, third-party contractor, or in any other capacity, will be limited to a total of ten thousand euros (€ 10,000) or, if the fee excluding turnover tax that has been paid for the execution of the instruction to which the claim relates is higher than ten thousand euros (€ 10,000) excluding turnover tax, up to an amount equal to this fee with a maximum of one hundred thousand euros (€ 100,000) excluding turnover tax.
- DKT excludes all liability for indirect damage, consequential damage and/or trading losses.
- The limitation of liability referred to in paragraphs 1 up to and including 3 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 items that DKT uses for the performance of the instruction, without any exceptions;
- if DKT has wrongly refused to provide its service and this results in damage;
- if a message sent by DKT in digital form is not transmitted correctly or completely or in time.
- DKT is not liable if a bank where DKT holds a designated account does not comply with its obligations towards DKT and/or the Client.
- Any right to claim compensation will in any case lapse twelve months after the event from which the liability arises, either directly or indirectly; this does not exclude the provisions in article 6:89 of the Dutch Civil Code.
- A claim for damages 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.
- DKT will never be liable for damage a Client sustains by or in connection with the fact that the Client or DKT has not yet been able to complete the identification procedure as referred to in the Prevention of Money Laundering and Financing of Terrorism Act (WWFT), unless arising from an intentional act or gross negligence on the part of DKT.
- Except in the case of an intentional act or wilful recklessness on the part of DKT, the Client indemnifies DKT and the persons associated with DKT against all claims of third parties, as well as against all additional costs relating to the services provided by DKT for the Client. This indemnification also includes the cost of legal assistance.
Article 8 Applicable rules of professional conduct and practice, Money Laundering and Terrorist Financing Prevention Act (WWFT) and General Data Protection Regulation (AVG)
- DKT complies with all existing rules of professional conduct and practice. An explanation of these rules can be found in the consumer brochure ‘Spelregels voor Notaris en Consument’ compiled by the Royal Notarial Association (KNB) in consultation with the Consumers’ Association and the Association of Homeowners. This brochure can be found on www.knb.nl and is available from DKT on request.
- The services provided by DKT are subject to the WWFT. This means that DKT has to carry out a customer due diligence check, which involves, among other things, establishing and verifying the Client’s identity. The WWFT also requires DKT to report any situations or transactions of an unusual nature to the Financial Intelligence Unit-Nederland (FIU Nederland). According to the WWFT, DKT is not allowed to inform the Client of such a report. DKT will never be liable for any damage a Client has sustained, sustains or will sustain due to a report under the WWFT, unless arising from an intentional act or gross negligence on the part of DKT.
- By giving the instruction, the Client acknowledges that they are familiar with the aforementioned obligations arising from the WWFT and the Client gives DKT permission to perform, in so far as necessary, the required actions.
- By giving the instruction, the Client expressly allows DKT to process (record and retain) personal data of the persons who are involved, directly or indirectly, with the service provision of DKT. DKT handles this personal data in accordance with the General Data Protection Regulation (AVG). The privacy statement explaining how the office handles the personal data under the AVG can be found on the website.
- All personal data that DKT receives from the Client or collects itself during the performance of the instruction is subject to an obligation of confidentiality towards third parties. DKT will not use this data for any other purpose other than that for which it has been obtained, unless the information is presented in a form that cannot be traced back to the person(s) involved. This duty of confidentiality does not apply:
- if and in so far as the Client has given their express permission to disclose the information to third parties;
- if the disclosure of the information to third parties is logically necessary for the performance of the instruction;
- if there is a legal obligation to disclose the information to a third party, or;
- if personal data is disclosed to third parties in their capacity as sub-processor.
- A Client with staff, partners or directors must (if applicable) disclose these terms and conditions and the privacy statement of DKT to the persons involved and whose personal data is processed by DKT.
- Electronic communication, including e-mail, is considered written information. The Client agrees with the use of electronic communication and acknowledges that it is not safe. DKT is not liable if electronic information is intercepted, manipulated, delayed, misdirected or infected by a virus. If the Client carries on a trade or a business, the applicability of article 6:227b, paragraph 1 of the Dutch Civil Code, which relates to the disclosure of information in electronic trading, and of article 6:227c of the Dutch Civil Code, which relates to the manner in which agreements are entered into in trade, is excluded.
Article 9 Applicable law, complaints and disputes procedure, dispute resolution
- The instruction, the service provision and any liability claims are exclusively governed by Dutch law.
- The service provided by the civil-law notary is also subject to the complaints and disputes procedure of the notarial profession.
- If the Client has any complaints about the work performed by DKT, or about the expense claim submitted by DKT, they will first report this to the complaints office of DKT. A complaints procedure 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 Disputes Commission for the Notarial Profession (Dutch: Reglement Geschillencommissie Notariaat), appeal to the Disputes Committee of the KNB or, in so far as it concerns a disciplinary complaint, to the relevant Chamber of Notaries (also see www.knb.nl and www.degeschillencommissie.nl. The Client is, if appropriate, 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.
Contrary to the provisions in the preceding sentence, DKT is entitled to submit disputes to the competent court in the Client’s place of residence.
- If found necessary by DKT, DKT may suspend the service requested by the Client until the court (in interlocutory proceedings) has ruled on the duty of due care. In that case all legal costs (both those of DKT and those of the Client) will, even if the court rules that DKT is obliged to provide services, be at the expense of the Client, and DKT will have the right to charge the Client for the extra work carried out in connection with the conduct of the proceedings.
Article 10 Exclusion transfer and pledge
The transfer and pledge of a claim against DKT to a third party is excluded (article 3:83, paragraph 2 of the Dutch Civil Code).
Article 11 Multiple languages
- These general terms and conditions are available in Dutch, German, English and French. In the event of any conflict between the Dutch text and the German, English or French text, or the explanation thereof, the general terms and conditions written in the Dutch language will be binding.
- At the request of the Client, these general terms and conditions may also be made available in other languages than those referred to in paragraph 1. The costs of the translation will in that case be at the expense of the Client.
Article 12 Final stipulations
- Deviations from these general terms and conditions can only be made in writing. In the event of any conflict between these general terms and conditions and a confirmation of instruction in which these general terms and conditions have been declared to apply, the provisions in the confirmation of instruction will prevail.
- Together with the confirmation of instruction, including any follow-up instruction or amended or supplementary instruction, these general terms and conditions constitute the entire agreement between DKT and the Client. Any prior agreements, arrangements, understandings or statements will hereby no longer apply.
- Amendments to these general terms and conditions or to the confirmation of instruction are only possible and effective if and in so far as everyone involved has agreed to them in writing (this also includes by electronic means).
- DKT is entitled to amend these general terms and conditions. Contrary to the provisions in the preceding paragraph, the amended terms and conditions, where it concerns ongoing instructions, are deemed to have been accepted if the Client does not object to the applicability of the amended terms and conditions within fourteen (14) days after the amended terms and conditions have been sent to the Client or have otherwise been communicated to the Client.
Filed by DKT with the court registry of the District Court Zeeland-West-Brabant on October 11th, 2023 under number 25/2023.