General terms and conditions

ART 1. SCOPE

These provisions apply to all relationships between ACTA Consult LLC and the client (hereinafter collectively referred to as 'the parties' and separately as 'a party'.

Current terms and conditions remain applicable to the relationship between the parties for each new additional or supplementary assignment, without this having to be explicitly renewed.

In the event of contradiction between the contents of this framework agreement and the engagement letter, the engagement letter has priority. Both documents are hereinafter referred to as 'the agreement'. The provisions of the present agreement apply to the services of ACTA Consult LLC with respect to the client, irrespective of whether or not these are described in an engagement letter.

In accordance with ordinary law, the liability of ACTA Consult LLC can only be invoked for assignments which are shown to have been accepted by him.

ART 2. ESTABLISHMENT OF THE AGREEMENT

Unless otherwise stipulated in the engagement letter, this agreement is entered into and becomes effective from the moment the engagement letter signed by the client is received by ACTA Consult LLC, and following acceptance in the context of the customer acceptance procedure (CAP).

ART 3. DURATION AND TERMINATION OF THE AGREEMENT

Unless stipulated otherwise in the engagement letter and to the extent permitted by law or professional rules, both parties can terminate the agreement at any time, subject to notice of termination being issued to the other party by registered letter or email and subject to a notice period of three months.

During the notice period, the provisions of the engagement letter and this framework agreement remain in full force.

Unless otherwise agreed by the parties, termination of the agreement will result in the immediate discontinuation of the services of ACTA Consult LLC in relation to preparation of the annual accounts for the financial year preceding the termination date, including in cases where a notice period applies. 

Unless otherwise stated in the engagement letter, all costs and fees corresponding to the work already performed by ACTA Consult LLC will be invoiced.

After termination of the agreement, all records and documents belonging to the client must be returned to the client or its authorised representative.

ART 4. IMMEDIATE TERMINATION FOR CERTAIN REASON(S)

In all cases, ACTA Consult LLC can terminate the agreement at any time, without notice period and without compensation by registered letter or e-mail, if there are reasons that make continuation of the cooperation impossible, such as:

a) Circumstances that threaten the independence of ACTA Consult LLC;

b) Circumstances that make performance of the assignment impossible in accordance with ACTA Consult LLC and ethical standards applicable to ACTA Consult LLC;

c) The apparent or repeated shortcoming(s) of the client with respect to its own obligations as described in the present agreement and in the engagement letter;

d) In case of judicial restructuring, bankruptcy, proceedings for dissolution or apparent insolvency of the client.

The reasons for immediate termination of the agreement are communicated to the client.

Depending on the circumstances, ACTA Consult LLC’s decision to terminate the agreement may be preceded by a warning.

Immediate termination for the reason specified under c) must always be preceded by a notice of default.

If ACTA Consult LLC terminates the agreement for one or more specific reasons, he will notify the client of the reason for the termination in writing and inform the client of the legal actions that are urgently required to safeguard the client’s rights, and that had been assigned to him.

The client can terminate the agreement at any time without notice or compensation, in the event that ACTA Consult LLC is clearly in default of his obligations as described in this agreement. The client’s decision must be preceded by a written notice of default to ACTA Consult LLC.

The replacement of the individual responsible for the performance of the engagement may under no circumstances be invoked as a legal basis for such termination of the agreement.

ART 5. SUSPENSION OF PERFORMANCE OF OBLIGATION

5.1. In case of non-performance, incorrect or late performance by the client of the client’s obligation(s) as set out in this agreement and/or, if applicable, in the engagement letter, ACTA Consult LLC is entitled to suspend or postpone performance of his/her obligations until the client has performed its own obligations, without the client having any right to compensation.

ACTA Consult LLC shall inform the client of this by registered letter or by e-mail. Suspension of the performance of obligations by ACTA Consult LLC must be preceded by a notice of default from the client.

5.2. If, after commencement of the suspension or postponement of performance, legal acts necessary to safeguard the rights of the client, for which ACTA Consult LLC has been commissioned, are urgently required, ACTA Consult LLC will inform the client accordingly.

5.3. All costs and expenses resulting from the suspension or postponement are borne by the client.

5.4. In all circumstances, ACTA Consult LLC is entitled to payment of the fees and costs related to activities already carried out.

5.5. Suspension or postponement by ACTA Consult LLC of performance of the obligations does not affect ACTA Consult LLC's right to immediately terminate the agreement in the cases provided for in article 4 of the current agreement.

ART 6. RIGHTS AND OBLIGATIONS OF THE PARTIES

6.1. Confidential Information

6.1.1 All information (both personal and company information) obtained by one of the parties during or following performance of the assignment entrusted to ACTA Consult LLC shall be treated in the strictest confidence and shall not be disclosed to third parties without the prior written and explicit consent of the other party. This also applies to quotations in preparation for assignments and for the reports resulting from performance of said assignments.

6.1.2 Contrary to the provisions set out in article 6.1.1 ACTA Consult LLC is entitled – unless explicitly prohibited in writing – to mention the client as a reference, for example in the context of public tenders. Any mention of the client for publicity purposes always requires prior permission.

6.2. Rights and obligations of ACTA Consult LLC

6.2.1 ACTA Consult LLC has a best endeavours obligation to exercise due diligence in independently performing the assignments entrusted to him/her. He/she shall ensure that the services performed are provided in accordance with the ethical and other professional standards, taking into account the relevant legislation and regulations in force at the time of performance of the agreement.

6.2.2 ACTA Consult LLC can in no case be held liable for the consequences of possible later changes – if necessary with retroactive effect – to these legal and regulatory provisions, changes to case law or administrative standpoints. Nor is he/she responsible for the consequences of any shortcomings, errors or violations that may have been committed before his/her intervention.

Performance of the assignment is not – unless otherwise stipulated – specifically aimed at discovering possible fraud.  Unless otherwise stipulated, ACTA Consult LLC is not obliged to check the accuracy and completeness of the information provided to him by the client or its appointee(s), nor the reliability of the deeds, contracts, inventories, invoices and supporting documents of all kinds, which are entrusted or presented to him by the client as evidential documents or as documents which must serve as such.

6.2.3 ACTA Consult LLC may be assisted by service providers or experts of his/her choice and have the assignments arising from the agreement carried out wholly or partially by (an) appointed person(s) or expert(s). ACTA Consult LLC shall be entitled to make the information and documents that he/she obtains from the client available to these service providers or third experts.

6.2.4 ACTA Consult LLC, as well as his/her proxy/proxies or appointee(s), shall be bound to professional secrecy, subject to the application of the exception as provided by law, including the provisions of the legislation and regulations to prevent the use of the financial money laundering system, terrorist financing and the obligations under the WCO legislation that obliges ACTA Consult LLC to pay attention to any facts from which it is deduced that the continuity of your business is jeopardised.

6.3. Rights and obligations of the client

The client undertakes:

To the extent that the services of ACTA Consult LLC depend on the information and explanations to be provided by or on behalf of the client, the client should ensure that such information and explanations are made available in a timely manner and are complete, accurate and not misleading. The client is obliged to communicate spontaneously and without delay to ACTA Consult LLC all facts, documents or data of which it has knowledge or should reasonably have knowledge, and which are relevant in the context of the assignment being carried out by ACTA Consult LLC. The client is obliged, if ACTA Consult LLC so requests, to confirm in writing that the supplied documents, information and explanations are accurate and complete. If information or explanations are based on assumptions, the client shall provide ACTA Consult LLC with relevant details. The client is responsible for immediately informing ACTA Consult LLC of any change in the information or statements provided, as soon as it is no longer possible to continue using them as a basis or as soon as the previous assumptions submitted to ACTA Consult LLC can no longer be sustained.

When the client uses information or documentation from third parties or provides them to ACTA Consult LLC, the client shall ensure that it obtains the necessary authorisations from these third parties to enable ACTA Consult LLC to provide his/her services. The client is responsible for the relations with such third parties, for the quality of their contribution and for their work and for the payment of their fees. Unless otherwise stipulated by the law, ACTA Consult LLC rules or the engagement letter, ACTA Consult LLC shall not verify the accuracy of the information or the documentation provided to us by such third parties.

If the client fails to give ACTA Consult LLC the relevant information and explanation necessary for proper performance of our assignment, this could render it impossible to provide or finalise the services or could lead to the inclusion of a reservation in any report that ACTA Consult LLC is required to draw up under the agreement. As a last resort, ACTA Consult LLC has the right, unless otherwise provided by law or professional rules, to discontinue the provision of services without prior notice, or to terminate or suspend the agreement with immediate effect.

ART 7. COSTS AND FEES

7.1. Determination of costs and fees

The costs and fees are determined in accordance with the legal and regulatory provisions that are applicable to ACTA Consult LLC and provided for in the engagement letter, to which these general terms and conditions apply in full.

Costs and fees are due as soon as activities are started on behalf of the client, without it being necessary for the assignment to have been completed.

In the event of a minor failure, the normal prices and fees remain applicable and the client is not entitled to demand a price reduction from ACTA Consult LLC.

7.2. Costs to third parties

All costs directly contracted with third parties that are necessary for performance of our services are not included in the fees and are invoiced additionally. At the client’s request, the supporting documents shall be presented as proof of costs incurred for the client’s account.

7.3. Updating of the fees

ACTA Consult LLC has the right to periodically adjust the agreed rates, on the basis of significant changes to the service provider’s cost structure, such as, but not limited to, changes to wage costs.

7.4. Payment conditions

Unless otherwise stipulated in writing, invoices are payable within 15 calendar days of the invoice date.

In the event of late payment, interest on arrears is due by law without a written reminder dating from the invoice date, amounting to 1 percent per commenced month. Moreover, in the event of non-payment of the invoice on the due date, each amount due shall be increased by 12 percent by operation of law and without prior notice of default, by a minimum of 125 euros by way of a conventional compensation clause as fixed compensation for extrajudicial costs, without prejudice to the right of ACTA Consult LLC to prove a higher amount of damage and to claim compensation for this.

In the event of late payment, ACTA Consult LLC has the right to suspend its obligations in accordance with Article 5.

7.5. Interim invoicing

ACTA Consult LLC can draw up interim statements at any time during performance of the assignment. These interim statements may be invoiced regardless of whether or not the assignment has been concluded. Unless expressly provided for otherwise, these interim invoices are considered as invoices and not as advances. 

7.6. Contesting the statement of costs and fees

All objections in relation to costs and fees should be submitted to ACTA Consult LLC in writing (via email or registered letter) within 30 calendar days of the invoice date, stating the reason for the objection. If ACTA Consult LLC does not receive any objection or does not receive it within the deadline, it shall be assumed that the client agrees with the invoiced services.

ART 8. LIABILITY

8.1. ACTA Consult LLC will provide the services with due care and in agreement with the applicable professional regulations and legal requirements. Unless otherwise stipulated in legal requirements or professional regulations, the services provided by ACTA Consult LLC constitute an obligation to perform to the best of their abilities and not an obligation to guarantee a specific result.

8.2. Restoration of damage caused by failure to meet a contractual obligation on the part of ACTA Consult LLC or an auxiliary person of ACTA Consult LLC gives rise, within the legal limitations, to an exclusively contractual liability claim against ACTA Consult LLC. No extra-contractual liability claim may be made against ACTA Consult LLC or the auxiliary of ACTA Consult LLC, including where the cause of the damage can also be considered a wrongful act. Consequently, each party to this agreement commits to only filing claims and/or taking legal action against the other party in the event of any breach of this agreement, and not against any of the employees, directors, independent service providers, third parties, or representatives of the other party. The parties to this agreement hereby irrevocably and unconditionally waive any contractual or non-contractual claim or right against any of the employees, directors, independent service providers, third parties, or representatives of the other party under or in connection with any breach of this agreement, to the extent permitted by law. The provisions of this article 8.2 of this agreement shall constitute a third-party stipulation for each of the employees, directors, independent service providers, third parties, and representatives of each of the parties to this agreement, as referred to in Article 5.107 of the Civil Code.

8.3. The total liability on the part of ACTA Consult LLC (both contractual and extra-contractual) is limited to EUR 50,000 for all engagements covered by this agreement. If this sum is lower than either five times the agreed fee for the relevant engagement or, in the case of engagements charged on a time and expense basis, five times the fees paid within the 12 months preceding the event giving rise to the damage, then the maximum liability is whichever amount is higher, calculated as five times the agreed fee or actual fees paid.

8.4. Unless otherwise stipulated by mandatory legal provisions, ACTA Consult LLC can under no circumstances be held liable for damage resulting from (a) loss of profit, goodwill, commercial opportunities or expected cost savings or advantages, (b) loss or misuse of data by a third party or (c) indirect loss or consequential damage.

8.5. If two or more instances of damage are found to be the result of the same failure by ACTA Consult LLC, they will be considered to constitute a single case of liability and ACTA Consult LLC’s liability will therefore be limited to the highest liability applicable to the engagements or agreements concerned.

8.6. ACTA Consult LLC can also only be held accountable for reimbursement of the net damage incurred by the client.

8.7. Unless otherwise stipulated by legal provisions, any claim against ACTA Consult LLC based on or in connection with this agreement will be valid only if made within three years following the action or omission of which ACTA Consult LLC is accused.

8.8. The liability limitations described in this Article do not apply where ACTA Consult LLC or an auxiliary has committed an intentional error or fraudulent act.

ART 9. PROFESSIONAL INDEMNITY INSURANCE IN RESPECT OF ACTA CONSULT LLC

ACTA Consult LLC's professional liability is insured by ACTA Consult LLC in accordance with the standards laid down in this respect by the various professional federations in which ACTA Consult LLC is active.

ART 10. DETECTION OF FRAUD, MISTAKES AND NON-COMPLIANCE WITH LAWS AND REGULATIONS

The client is solely responsible for protecting its assets and for preventing and detecting fraud, errors and non-compliance with laws and regulations.
Consequently, under no circumstances can ACTA Consult LLC be held liable for any damage caused in any way by or in connection with fraudulent or negligent acts or omissions, false statements or non-performance on the part of the client or its representatives, employees, directors, co-contractors or agents, or on the part of any of the entities affiliated with it and its representatives, employees, directors, co-contractors or agents, or on the part of any third party.

However, if required by law, the applicable professional rules or the engagement letter, ACTA Consult LLC shall endeavour to organise the work in such a way that ACTA Consult LLC has a reasonable expectation of detecting all material inaccuracies in the client's financial statements or accounting documents (including any material misstatement due to fraud, error or non-compliance with laws and regulations), although ACTA Consult LLC’s work cannot be expected to reveal all substantial misrepresentations or fraud, error or non-compliance that may occur.

ART 11. INTELLECTUAL PROPERTY RIGHTS

All reports and documents resulting from the assignment remain the intellectual property of ACTA Consult LLC. Subject to written and explicit deviations, these reports and documents may only be used by the client after full payment of all fees and costs associated with performance of the assignment entrusted to ACTA Consult LLC and within the limits of the specific assignment for which they were drawn up. ACTA Consult LLC may use the data provided by the client for internal analyses and/or benchmarking.

ART 12. STORAGE OF RECORDS AND WORK DOCUMENTS

Working documents remain the property of ACTA Consult LLC during the work. Upon termination of the services, ACTA Consult LLC shall retain related documents and records for the period provided for by law for the type of services that are the subject of the engagement letter. After this period, ACTA Consult LLC shall be allowed to destroy them, unless otherwise agreed separately in writing, without having to inform the client in advance. The client is responsible for the preservation of the (accounting) documents and documents handed over to it by ACTA Consult LLC, for the statutory and regulatory periods. 

Under no circumstances is ACTA Consult LLC obliged to keep original documents or documents for the client, unless otherwise expressly agreed.

ART 13. RECRUITMENT BAN

The client and ACTA Consult LLC expressly undertake not to employ, directly or indirectly (for example through a legal entity), for the entire duration of the agreement and for a period of twelve months after the termination thereof, regardless of the reason for termination, any member of staff or independent employee or partner of the other party involved in performance of the agreement, or to have him/her directly or indirectly (for example through a legal entity) perform work outside the framework of an agreement between the client and ACTA Consult LLC, unless the other party has given prior written agreement.

Any violation of this prohibition shall give rise to a one-off flat-rate compensation amounting to 25,000 euros, without prejudice to the right of ACTA Consult LLC to prove higher damages and to claim compensation for these.

ART 14. PROCESSING OF PERSONAL DATA

14.1. In order to provide the services, ACTA Consult LLC processes personal data. For the purposes of this article, reference is made to the definitions and interpretations of, on the one hand, the applicable European legislation regarding the protection of personal data (including the GDPR) and, on the other hand, the applicable national legislation regarding the protection of personal data, hereinafter collectively referred to as "Data Protection Legislation".

14.2. The client confirms that the personal data it transfers to ACTA Consult LLC in the context of the assignment will be processed in accordance with the applicable Data Protection Legislation. Unless expressly agreed otherwise, ACTA Consult LLC will act as a data controller. ACTA Consult LLC will process the personal data as a data controller in accordance with the assignment or in accordance with a statutory obligation.

14.3. ACTA Consult LLC shall take appropriate technical and organisational measures to protect personal data against unauthorised or unlawful processing, accidental loss, destruction, changing or corruption of personal data, in accordance with the applicable data protection legislation.

14.4. By signing this agreement, the client expressly acknowledges that it has been able to take note of ACTA Consult LLC's privacy statement, the most recent version of which can always be found on https://www.acta.be/en/privacy-and-data-protection. 

ART 15. PROFESSIONAL AS DATA PROCESSOR

15.1. Particularly for accountancy activities, ACTA Consult LLC may require access to the client's information systems. ACTA Consult LLC then acts as processor according to the provisions of the GDPR. In that case ACTA Consult LLC shall act under the strict instructions of the client. 

15.2. ACTA Consult LLC is only allowed to access personal data that is expected to be required for the provision of the services. Under no circumstances shall a professional have access to information which is not necessary for performance of his/her duties.

15.3. The purpose of the processing is shown in the engagement letter. In particular, ACTA Consult LLC has the task of conducting the internal accounting of the client. In the context of this assignment, ACTA Consult LLC processes personal identification data and invoicing data of clients and suppliers of the client.

15.4. ACTA Consult LLC does not take a copy of the personal data he/she receives during the provision of the services. In the context of the preparation of the annual accounts it may happen that ACTA Consult LLC makes a copy of personal data that he/she receives during the provision of the services. In that case, ACTA Consult LLC acts as a controller and not as a processor, and consequently this article 15 does not apply.

15.5. Within the limits of the provision of the services and the GDPR, the client gives ACTA Consult LLC the permission to communicate the personal data to all persons, institutions and authorities that participate directly in performance of the assignment, when this is strictly necessary for the granting of the services.

15.6. Under no circumstances can ACTA Consult LLC have recourse to third-party subcontractors for processing, except at the explicit request of the client or with the explicit consent of the client.

15.7. It remains the client’s responsibility to ensure that ACTA Consult LLC can access the information systems securely. When ACTA Consult LLC gains access to the client's information systems via resources belonging to the client, adequate security is the client’s responsibility.

15.8. ACTA Consult LLC shall always provide assistance to the client when a person whose personal data is being processed wishes to exercise the rights that he or she derives from the GDPR.

15.9. In the event of a breach of the security of personal data that inadvertently or unlawfully leads to the destruction, loss, modification or unauthorised disclosure of or unauthorised access to transmitted, stored or otherwise processed personal data, ACTA Consult LLC shall inform the client immediately. At the start of the assignment, the client shall notify the practitioner of the person responsible for the data processing to whom the report must be made. ACTA Consult LLC shall provide all reasonably possible cooperation to the client in order to gain an insight into the seriousness and possible consequences of the client’s data breach.

ART 16. ELECTRONIC TRANSFER OF DATA, ELECTRONIC STORAGE OF DATA, ELECTRONIC SIGNATURE AND REMOTE ACCESS

16.1. During the provision of the services, the parties can communicate electronically. ACTA Consult LLC is at all times entitled to communicate with the client on a completely digital basis. However, it is impossible to guarantee that the electronic transmission of data can be done completely safely, without viruses or without error, and consequently such data transmissions can be intercepted, falsified, lost, destroyed, delayed or rendered unusable. The parties hereby recognise that no system or procedure can completely exclude such risks.

Additionally, the parties recognise the right of ACTA Consult LLC to electronically keep and process all data in his/her possession in performance of his/her assignment.

16.2. The parties hereby confirm that they accept those risks, validly permit the use of electronic communications and the electronic storage of data and agree to use all available and appropriate means to detect the most widespread viruses before transmitting and storing information by electronic means. Each party is responsible for protecting its own systems and interests with respect to electronic communications and data retention, and no party is liable in any way or form, whether contractual or criminal (including negligence), or for any other reason, for any loss, error or omission, arising out of or in connection with the use of electronic communications between the parties or the electronic retention of data.

16.3. ACTA Consult LLC is allowed to use the electronic signature system within the limits of what is legally provided for. Unless expressly agreed otherwise, ACTA Consult LLC is entitled to determine unilaterally to what extent the electronic signature is used in the context of the assignment entrusted to him/her.

16.4. During performance of the services, ACTA Consult LLC is allowed to use the client's local network as well as the client's internet in order to connect to ACTA Consult LLC's network. The employees of ACTA Consult LLC always make one direct connection to ACTA Consult LLC's network, thereby creating a separate network. Any associated risks will be minimised by the security measures taken by ACTA Consult LLC. Any liability of ACTA Consult LLC as a result of remote access is excluded.

ART 17. INDEPENDENT SERVICE PROVIDERS

In providing services, ACTA Consult LLC acts only as an independent service provider. Unless expressly stated otherwise in the engagement letter, we do not undertake to fulfil any legal or contractual obligation of the client nor to assume any responsibility for the client’s activities or transactions.

To the extent required to enable ACTA Consult LLC to perform all his/her obligations regarding independence, the client shall ensure that ACTA Consult LLC has an up-to-date list of all entities affiliated with the client, both Belgian and foreign, at all times. The client shall set up procedures to impose on one of these affiliated entities prior approval with regard to all services to be performed by the entities within ACTA Consult LLC's network and shall inform us without delay of any circumstance that could compromise ACTA Consult LLC's independence.

ART 18. FORCE MAJEURE

Neither party shall be liable to the other(s) if the failure to perform its obligations is due to circumstances beyond its reasonable control, including any advice, warning or prohibition emanating from any competent local, national, foreign or supranational authority, or emanating from any new policy of either party relating, for example, to travel to particular countries or regions. If circumstances persist that make it impossible for a party to fulfil its obligations for an uninterrupted period of 30 days, either party shall be entitled to terminate the agreement by giving 15 days’ written notice of termination at any time after expiry of that 30-day period.

ART 19. TRANSFER

Without prejudice to the consequences that the law attaches to transfers of general assets or branches of industry, mergers, divisions and similar transactions, the parties may not transfer, encumber or in any way trade any of their rights or obligations arising from this agreement without the prior written consent of the other parties to the agreement.

ART 20. INVALIDITY OF ONE OR MORE PROVISIONS

The invalidity, non-legality or non-enforceability of one or more provisions of these general terms and conditions or any agreement that governs the legal relationship between the parties shall in no way affect the validity and enforceability of the remaining provisions of these agreements. In this case, the parties shall consult each other with regard to substitute provisions which, in terms of content and scope, come closest to the invalid, non-legally valid or non-enforceable provision, taking into account the intention of the parties.

ART 21. ANNEXES TO THE AGREEMENT

Any annexes to this agreement or other agreements between ACTA Consult LLC and the client are always an integral part of the agreement.

ART 22. COMPLETE  AGREEMENT AND AMENDMENTS

The agreement contains the entire agreement between the parties regarding transactions envisaged therein and replaces all previous oral agreements and documents relating thereto, except where the parties have expressly deviated – in writing – from an earlier version of this agreement. In that case, these deviations agreed in writing will continue to apply in full provided they are not in conflict with the applicable legislation.

This contract may be amended from time to time. A qualified professional will always inform the client of any such amendment at least 6 weeks in advance. The client can subsequently opt to terminate the contract. Any amended contract provisions apply exclusively to assignments that commence or services that are delivered following the date on which the revised version of this contract enters into force.

ART 23. APPLICABLE LAW AND RESOLUTION OF DISPUTES

The interpretation and implementation of the agreement are governed by Belgian law. Any dispute of any kind falls under the jurisdiction of the courts and tribunals of the district where ACTA Consult LLC's registered office is located.