TERMS AND CONDITIONS OF DAMSTÉ ADVOCATEN – NOTARISSEN
1. The cooperative association Damsté advocaten – notarissen U.A., hereinafter referred to as Damsté, is a cooperative association with limited liability.
2. All assignments are exclusively given to, and accepted and performed by Damsté, with due observance of these general terms and conditions. If these terms and conditions become applicable to an agreement with the client, they will also apply to other assignments that have been or will be negotiated with the same client. If terms and conditions apply to an existing agreement with the client, the applicability of the new terms and conditions replaces the applicability of the previous terms and conditions. No agreement will ever be effected between the client and the person who, on the basis of any legal relationship with Damsté, actually performs the assignment or is engaged in it, nor will any agreement be effected if the assignment is given with a view to performance by said person as referred to in Book 7, Section 404 of the Dutch Civil Code. The applicability of Book 7, Section 404 and 407(2) of the Dutch Civil Code is excluded, so that it is not the professional but exclusively Damsté that is obliged to carry out the assignment and consequently only Damsté can be liable for any shortcoming.
3. Each and every liability of Damsté, the individual professionals, the lawyers, the civil-law notaries, and all persons who will perform or have performed the work for the client, or will be engaged or have been engaged in the work, is in total always limited to the amount that is paid out under Damsté’s professional liability policy, plus the amount of the excess under the policy concerned. Damsté is not liable for the defective operation of any equipment, software, data and files, registers or other things used in the performance of the assignment. Damsté excludes liability for indirect loss, consequential loss and/or direct trading loss. The limitation of Damsté’s liability also applies if Damsté refuses an assignment without justification and this results in a loss. Without prejudice to the lapse of rights pursuant to the failure to protest in good time within the meaning of Book 6, Section 89 of the Dutch Civil Code, all rights of action and other powers of the client against Damsté lapse 1 year after the time at which the client became or could have been become familiar with it. Damsté, the lawyers, the civil-law notaries, and all persons who will perform or have performed the work for the client, or will be engaged or have been engaged in the work may invoke these terms and conditions (and the provisions restricting liability included therein) also if they are held liable on a non-contractual basis, such as a wrongful act. The client waives all rights of action against individual professionals, such as the lawyers, the civil-law notaries, and all persons who will perform or have performed the work for the client, and waives his/her or its right to personally hold the individual professionals referred to above liable. To the extent necessary/possible, the provisions of these terms and conditions (also) apply as third-party clauses for the persons referred to in this article. The client indemnifies Damsté and the persons referred to in this Article against third-party liability, in connection with the assignment given, except to the extent that in the absence of this provision in connection with such a liability a payment would be made under an insurance policy.
4. The client agrees that for the performance of the assignment Damsté will make use of digital means of communication, data storage services, equipment, software, data and files, registers and/or other items. Damsté is not liable for damage resulting from their use. Damsté is not liable for damage resulting from unauthorised access to, inaccessibility of, accidental distribution of, loss of and/or damage to the data (or part thereof), the computer or other files stored by it and/or the digital or other networks, servers, workstations, (peripheral) equipment, software, digital means of communication and/or services used by it to store data and files.
5. If Damsté engages a third party, Damsté is not liable for any shortcomings of this third party. The client hereby authorizes Damsté to accept any general terms and conditions (with any limitations of liability) stipulated by this third party, on behalf of and for the client.
6. If, for whatever reason, no payment is made to the client under the professional liability policy, the joint liability of Damsté and of the persons referred to in Article 3 is limited to a total amount of € 25,000 or, if the fee excluding VAT paid for the performance of the assignment related to the claim is higher than € 25,000 excluding VAT, up to an amount equal to this fee paid, with a maximum of € 225,000 excluding VAT.
7. Fee notes must be paid within 14 days. Any objection to the amount of the fee note must be submitted in writing within 14 days of the fee note date to the Internal Collection Department. If the objection has not been submitted in time, the right to object to the amount of the fee note has lapsed. Damsté has the right to change the time unit, the amount of the hourly rate, the percentage of office expenses, and the travel allowance used for calculating the fee from time to time for assignments already accepted as well as for new assignments.
8. A condition for the performance of an assignment may be that an advance be paid. Any advance paid will not be settled until the final invoice. If Damsté or the person who actually performs the assignment on the basis of any legal relationship with Damsté, is liable for payment of the court fee, Damsté has the power, if necessary in derogation of the provisions of Article 6, to perform, the action for which the court fee is due, if the amount of the court fee has been paid by way of advance to Damsté not later than four working days before said action must be performed.
9. Damsté’s objection procedure can be found at its website (www.damste.nl) and will be sent on request. Without prejudice to the provisions of Article 10, any disputes in connection with the formation and/or performance of the services, including any disputes on contested or unpaid fee notes, will be settled by:
– the Disputes Committee for the Legal Profession, if the assignment has been given to a lawyer;
– the Disputes Committee for the Notarial Profession, if the assignment has been given to a civil-law notary, a junior civil-law notary, or an assigned civil-law notary.
10. Any disputes in which the ordinary court is competent, because neither the Disputes Committee for the Legal Profession nor the Disputes Committee for the Notarial Profession is competent, will be settled by the Overijssel District Court, Almelo hearing location. For the benefit of the persons referred to in Article 3, the provisions of this article and the previous article also apply to disputes between the client and the persons referred to in Article 3.
11. The legal relationship between the client and Damsté is governed by Dutch law. If a translation of these general terms and conditions has been sent to the client, the Dutch text will prevail. In deviation of the provisions of Articles 9 and 10, Damsté may also submit a dispute to the relevant foreign court. If Damsté wants to institute proceedings against a party to an agreement to which these terms and conditions apply, and this party is established or residing outside the European Union, Damsté may also have the dispute settled by the arbitral tribunal of the International Court of Arbitration of the ICC, with due observance of the ICC Rules of Arbitration. In that case, the arbitral tribunal will consist of one arbitor.
12. With the exception of any explicit written to the contrary agreements, Damsté has been authorised by the client to disclose the identity and nature of the client and the nature of the activities performed for the client in marketing communications.
13. Some of Damsté’s activities are subject to the Dutch Money Laundering and Terrorist Financing (Prevention) Act (Wwft). Damsté may be obliged in this connection to report situations or transactions of an unusual nature to the Financial Intelligence Unit-Netherlands (FIU-NL). Pursuant to the Wwft, Damsté is not permitted to notify the client of such a report.
14. By using Damsté’s products and/or services, the client accepts that Damsté processes the client’s personal and other data in accordance with the General Data Protection Regulation. The client agrees to the inclusion of the client’s personal or corporate data in Damsté’s digital and accounting systems.
15. Different legal relationships exist between Damsté and the service providers that actually carry out the assignments. There are lawyers and civil-law notaries who are employees of Damsté and others who (with or without the intervention of a company) are members of the cooperative association or have a cooperation agreement with Damsté. On request, Damsté will provide a list where this is mentioned for each of them.
16. In the event of a conflict or an interpretation dispute between the Dutch text of these general terms and conditions and the text of these in a different language, the Dutch text shall be binding.
17. As part of its professional practice, Damsté maintains several third party bank accounts. The bank may pay positive interest or charge negative interest on the balances of the third party bank accounts. Damsté will pay positive interest to the client in accordance with the professional rules that are applicable to the legal profession and notarial practice. Damsté is entitled to pass on to the client negative interest that is charged to Damsté. Damsté is also entitled to charge costs for the calculation and processing of the interest to be paid or received. Finally, Damsté is entitled to charge a fixed amount to cover the interest costs and calculation and processing costs instead of the actual costs.
These terms and conditions were filed at the court registry of the Overijssel District Court, Almelo hearing location, on 21 March 2021 under number 11/2021.
Stichting Beheer Derdengelden Damsté (advocaten) IBAN: NL70 RABO 0396 8389 87 BIC RABONL2U
Letselpraktijk IBAN: NL22 RABO 0104 7890 50 BIC RABONL2U
Damsté Notariaat Derdengelden IBAN: NL32 RABO 0146 1429 77 BIC RABONL2U