General Terms and Conditions of Services (GTCS)
Barring express written agreement to the contrary, these General Terms and Conditions of Services (as they may be amended from time to time – hereinafter referred to as the “GTCS”) apply to every assignment entrusted to and accepted by the Association, subject to the provisions of any letter of commitment or special terms agreed, where necessary, with the Client. The GTCS prevail over all other general terms and conditions. Any request for our services made by the Client, once the latter has been informed of the GTCS, implies acceptance of these GTCS.
Scope of the services
The Association’s general object is the practising of the lawyer’s profession in Belgium. All the Association’s lawyers are members of the French Bar Council or the Dutch Bar Council of barristers practising at the Brussels Bar (Belgium). Some of the Association’s lawyers are also members of other Bars. The Association does not assume any responsibility concerning the provision of opinions subject to a foreign law or relating to non-legal aspects.
It is understood and accepted that the services rendered by the Association may include opinions and recommendations, but that all decisions taken in the context of putting these opinions and recommendations into practice fall under the Client’s responsibility and are the Client’s doing. In the framework of performance of the services referred to above, the Association shall be entitled to draw on all statements of facts and all documents furnished by the Client, as well as on all decisions taken and approvals given by the latter.
Beneficiaries of the services
Any service rendered by the Association is provided for the exclusive benefit of the Association’s client. Reference may be made to the services solely in the framework of the specific matter for which they have been provided. Our opinions may not be used by third parties and we do not assume any responsibility vis-à-vis the latter, except in cases where we have given our written consent.
2. Fees and expenses
Barring specific agreement to the contrary between the parties, our fees are billed on the basis of the hourly rate applicable to the practitioner(s) in question. These hourly rates are available on request and may be adapted.
The fees do not include expenses and disbursements, which are billed separately. The Association invoices office expenses, which cover internal costs (for typing, photocopies and telecommunications, for example). The Association also invoices all external disbursements and outlays incurred in relation to the services rendered. The client agrees to reimburse all disbursements, expenses and other usual outlays reasonably incurred by the Association on the client’s behalf or otherwise in relation to its services. These disbursements include, for example, translation costs where external services are contracted, bailiffs’ costs, court office fees, stamp duty and registration fees. The Association bills the client for all travel expenses as well as travel-related costs, subsistence expenses, transaction costs (including bank charges), courier costs, expenses relating to orders for copies of and the production of external documents and all other similar expenses inevitably incurred by the Association with third-party service providers in connection with its services.
The Association invoices in Euros. The Association’s invoices are payable in Euros immediately upon receipt thereof, by bank transfer. The Association does not accept cash payments or payments by debit/credit card. In the event of payment by cheque, the bank charges inherent to this form of payment will be borne by the client.
Except in the event of VAT exemption, VAT at the rate of twenty-one percent (21%) is applicable to all our fees (including disbursements and expenses). Our invoices are payable free of any withholding or deduction of any tax or fee. If you are obliged by law to withhold or deduct taxes/duties, you must increase the corresponding payment such that, after the withholding or deduction, the net amount we receive is the amount you owe us.
Duly issued invoices that have not been paid within thirty (30) days counting from the invoice date will be subject to the addition, ipso jure and without formal notice to pay, of default interest corresponding to the lowest of the following rates: (i) 1% per month or (ii) the highest legal rate.
This interest will in all cases be accrued monthly and within the limits laid down by the law. The Association shall be entitled to suspend or put an end to its intervention as long as payment of the invoices raised has not been effected, without prejudice to the exercising of its other rights and any other recourse.
If an arrangement of any kind is entered into under the terms of which all or part of the Association’s expenses and fees are payable by a third party, or if a court orders a third party to pay all or part of the Association’s expenses and fees in the context of a dispute, the Client shall remain jointly and severally liable for payment in the event of this third party failing to settle its account with the Association by way of full payment of the latter’s invoices.
3. Amounts received from clients and third parties
Amounts received by the Association from the Client or from third parties that have to be withheld on his/their behalf will be deposited by the Association into a third-party account with a financial institution of its choice. The Association does not assume any liability, in respect of anyone whomsoever, for credit deficiency or any other act or omission on the part of the financial institution concerned or any financial institution taking part in the transfer of funds.
4. Information: disclosure and confidentiality
Should, in the context of a matter it is dealing with, the Association be in possession of sensitive or confidential information relating to the Client, the Association shall not disclose any information to a third party without the Client’s consent, except (a) for that which could be required by the law, a regulation, a judicial or administrative procedure or pursuant to the professional rules applicable, or in the context of a dispute that has arisen between the parties, or (b) in the event that such information (i) had otherwise become accessible to the public (including, and without limitation, all information lodged with government agencies and made available to the public), (ii) is disclosed by the Client to a third party without having been subjected to the restrictions listed in the previous points, (iii) becomes available to the Association on a non-confidential basis via a third-party source and the Association were to consider that it could be disclosed with regard to its obligations towards its Client, (iv) had come to the Association’s attention before it had been passed on by the Client and would not infringe any obligation of confidentiality vis-à-vis the latter, or (v) had been developed by the Association regardless of any disclosure made by the Client to the Association.
Warning about e-mail communication
E-mails and their file attachments are intended for the sole use of the designated recipients and may contain confidential or exclusive information or information protected by professional secrecy or subject to some other form of protection. If you are not the addressee, you may not use, copy, disclose, distribute or disseminate the e-mail (or any part of its content or of its attachments) or take any measure whatsoever based on the said e-mail. If you receive an e-mail by mistake, please notify the sender immediately by return e-mail and delete the original e-mail as well as any copy in your system.
Although all reasonable precautions are taken to ensure that outgoing e-mails are virus-free, no guarantee is given that e-mails are free of faults or errors, given that e-mails may be intercepted, modified or lost, or contain viruses. The Association disclaims all responsibility as regards loss or damage resulting from the use of e-mails or file attachments. Consequently, we recommend that you screen e-mails and file attachments for viruses before using them.
Compliance with rules governing professional codes of ethics
We practise a regulated profession which is subject to the Professional Codes of Ethics drawn up by the Association of French-speaking and German-speaking Bars (www.avocats.be; http://www.avocats.be/files/publications/code/code_octobre-2013.pdf), the Association of Dutch-speaking Bars (www.advocaat.be), the French Bar Council of barristers practising at the Brussels Bar (www.barreaudebruxelles.be) and/or the Dutch Bar Council of barristers practising at the Brussels Bar (www.baliebrussel.be), as applicable to the lawyer(s) involved. More detailed information on the rules governing professional codes of ethics to which our professional practice is subject can be obtained from the above-mentioned organisations and websites.
Prevention of money laundering and terrorist financing
The lawyer complies with his legal obligations regarding identification of the client or his principal. The latter undertake to spontaneously provide any and all documents on the basis of which their identity can be established and authorise the lawyer to make copies of these. The lawyer’s and the client’s obligations stem in particular from the provisions of the Act of 18 September 2017 on the prevention of money laundering and terrorist financing and on the restriction of the use of cash. In such a case, the Association will need formal proof of the identity of its clients, their representatives and their end beneficiaries. To this end, the Association may make checks using external electronic databases. We also have to determine the object and nature of our professional relationship with you. If the Association is unable to obtain proof of the identity of its clients, their representatives and/or their end beneficiaries, or if the clients fail to provide them with such proof, the Association may find itself in a situation whereby it is unable to act for the client or has to cease acting for the client.
When the nature of the matter (provision of assistance to the client in the preparation or transacting of operations such as the purchase or sale of real estate or business concerns; management of stock funds or other assets belonging to clients or to his principal; opening or management of bank accounts, savings accounts or portfolios; organisation of the capital contributions needed for the incorporation, management or supervision of companies; incorporation, management or supervision of trusts, companies or similar structures or interventions in the name of and on behalf of the client in all financial and real estate transactions) or when the specific situations for which provision is made in the aforementioned Act of 18 September 2017 (country of origin, identification difficulties, unusual relationship between the client and the lawyer or the nature of the operations, public figure or other figure of a similar status) impose upon the lawyer an obligation of heightened vigilance, the client undertakes to answer any questions put to him by the lawyer enabling the latter to fulfil his legal obligations in respect of the combating of money laundering and terrorist financing.
When the lawyer assists the client in his defence before the courts or when he provides him with legal advice (evaluation of his legal situation), he is obliged to ensure strict observance of professional secrecy.
The law lays down the obligation for the lawyer to inform the president of the Bar when, outside his assignment involving the client’s legal defence or the provision of legal advice, he becomes aware of facts that he suspects are linked to money laundering or terrorist financing. If need be, the president of the Bar, guaranteeing observance of professional secrecy, passes on the statement of suspicion to the Financial Intelligence Processing Unit. The Association may be forced to stop working on the case in question and is not allowed to warn the client that a report of this kind has been drawn up. The Association does not assume any liability vis-à-vis the client for the fact of a report of this kind having been drawn up in good faith or for any consequences it may have.
5. End of the relations
Except in cases where relations are brought to an end prematurely in accordance with these general terms and conditions, a commitment will come to an end when the Association has completed the services referred to above.
The Client may put an end to the relationship linking him to the Association at any time.
For its part, the Association may cease to act on the Client’s behalf, subject to reasonable prior notice, if:
- the Client does not give appropriate instructions;
- the Client fails to provide the cooperation the Association is entitled to reasonably expect from it;
- it would not be easily practicable, or would be contrary to ethics or against the law, for the Association to continue to act on the Client’s behalf;
- the Association is faced with a conflict of interests;
- the Client fails to pay the Association’s invoices or requests for retaining fees when these are due and payable.
In the event of the assignment being brought to an end, the Client will have to pay all amounts owing for the work completed up to the date on which the assignment is terminated.
6. Liability –Limitation – Insurance cover
The Client accepts that the Association and its staff shall in no case be liable for any claims, responsibilities or expenses in connection with an assignment or a commitment that exceed the total amount of the fees paid by the Client to the Association in accordance with this commitment, with the exception of the amount the Association may have been ordered to pay the Client on account of violation of the principle of good faith or owing to deliberate transgression of duty. In this case, the liability of the Association and its partners, employees and officers regarding loss or damage sustained by the Client in the framework of or in relation to the work performed, including negligence and deliberate transgression of duty on its part, shall be limited to the amount covered by the Association’s professional liability insurance policy, irrespective of the extent of the loss or damage occasioned. The insurance cover taken out, its effects and the conditions governing its application will be placed at the Client’s disposal upon first request.
The limitation of liability and indemnification contained in these GTCS shall apply in all cases for which provision is made in the law, the contract, the articles of association, and in the principles governing liability for damage due to misfeasance or non-feasance (such as negligence) or in all other hypotheses. Owing to the importance of the participation and collaboration of the Client’s management and staff, when this is appropriate, the Client agrees to discharge the Association, its staff and the members of its team and thus bear full liability for and any costs resulting from false statements made by the Client’s management or staff concerned, in the context of the services rendered by the Association.
The Client must, without any limitation, provide the Association with all the support needed for the latter to carry out the services referred to above, in particular by affording it reasonable access to the Client’s data, information and staff. The Client shall be responsible for the accuracy and completeness of the data and information that its staff and officers provide the Association with for the purposes of the latter’s performance of its assignment.
8. Force Majeure
The Association may not be held liable for delays owing to circumstances or causes beyond its reasonable control, including, and without being restricted to, deeds, omissions or refusals to cooperate on the part of the Client in the context of pursuit of the assignment (including, and without limitation, on the part of its entities, or members of staff falling under its own control or its managers, directors, employees and other members of its staff and officers). The Association shall not be liable, either, for acts, omissions or lack of cooperation on the part of third parties, or for the consequences of fire, loss of data further to hacking, phishing or any other computer attack or any other cause, accidents, strikes or internal conflict, war or other violence, or any law, order or requirement issued by a government agency or national authority.
9. Independence of the parties
It is understood that the parties are independent of each other and that neither of the parties may be considered as an agent, distributor or representative in relation to the other. Neither of the parties will have to act as or present itself as being, either directly or indirectly, an agent of the other or bear or create any obligation whatsoever on the part of or on behalf of the other party.
We inform our clients of the existence of alternative dispute resolution options (arbitration, conciliation, mediation, negotiation, collaborative law) that can also offer the possibility to solve their disagreements.
In conformity with article 730/1 § 2 of the Judicial Code, the judge can, at the introductory hearing or at another hearing at a nearby date, interrogate parties with regard to the way they have tried to settle their disagreement prior to introducing the judicial proceedings and inform them of the possibilities to still reach an amicable settlement.
The options of alternative dispute resolution should therefore not only be considered together with our clients prior to introducing a law suit but also during the proceedings, however without the obligation for our clients to actually resort to alternative dispute resolution, unless in case of a court ordered mediation.
11. Applicable law and competent courts – Divisibility
These general terms and conditions, together with any letter of commitment or special conditions, are governed by and interpreted in accordance with Belgian law. Should one of the provisions of these terms and conditions be deemed to be inapplicable pursuant to a decision pronounced by a court, the inapplicability of this provision shall not affect the validity of the other provisions but it will have to be amended insofar as is necessary for its implementation and may be retained insofar as and to the extent that the parties so wish by mutual agreement.
Any dispute that may arise concerning the performance or end of the assignment or in relation to these GTCS shall be settled by the courts of Brussels (Belgium).