general terms and conditions
ARTICLE 1 — DEFINITIONS
1.1. “Cresco” means Cresco Advocaten, a limited liability partnership (besloten vennootschap) incorporated in Belgium with enterprise number VAT BE 0548.916.070 and with registered office at Lange Kievitstraat 118 –120, B-2018 Antwerpen; All lawyers who work in this law firm, are registered with the Order of the Antwerp Bar (Orde van Advocaten te Antwerpen) resp. Order of the Ghent Bar (Orde van Advocaten te Gent) or the Order of the Hasselt Bar (Orde van Advocaten te Hasselt); the applicable professional code of conduct can be consulted at www.advocaat.be;
1.2. “Data Protection Legislation” means EC Data Protection Directive (Directive 95/46/EC), all legislation implementing that Directive and all other laws and regulations enacted anywhere in the world relating to or impacting on the processing of personal data and privacy;
1.3. “Dispute” means (a) any dispute arising out of, relating to or having any connection with these terms and conditions, including any dispute as to its existence, validity, interpretation, performance, breach or termination or the consequences of its nullity, and (b) any dispute relating to any non-contractual obligations arising out of or in connection with these terms and conditions;
1.4. “Person” means any corporate, individual or other person, including any director or employee, including other professionals;
1.5. “Personal Data” means all personal data (as that term is defined in relevant Data Protection Legislation) provided to us pursuant to our agreementwith you;
1.6. “Relationship Partner(s)” means our partner(s) identified as such from time to time. If no partner has been identified as such, the Relationship Partner(s) for a particular matter will be the partner(s) responsible for the overall supervision of that matter;
1.7. “we”, “us” and “our” refer to Cresco providing services on a particular matter; and
1.8. “you”, “yourself” and “your” refer to the person, persons, entity or entities receiving those services.
ARTICLE 2 — APPLICATION AND INTERPRETATION
2.1. These terms and conditions will apply to our work for you, other conditions are excluded, except to the extent that we agree, or have agreed, different terms with you. In such case, the provisions of the terms and conditions that have not deviated from, remain applicable in full. Entrusting us with a matter implies your acceptance of these terms and conditions for this first matter as well as for matters that you will assign to us later, without prejudice to any amendments that will be made to these terms and conditions from time to time, of which you will be informed in due course. For the avoidance of any doubt, payment of the fees due entails acceptance of the general terms and conditions.
2.2. Nothing in these terms and conditions will apply to the extent that its application would result in a breach of applicable law or regulations.
2.3. These terms and conditions apply also to the advantage of the directors, managers, the shareholders of Cresco, the managers of such shareholders, and all persons who work or have worked for Cresco, whether as Relationship Partner, counsel, lawyer, associate, trainee, employee, advisor, third party agent, or in any other capacity whatsoever.
ARTICLE 3 — OUR RELATIONSHIP
You will instruct us on a matter-by-matter basis rather than on a permanent basis. We will not be responsible for advising you on non-legal matters (including, without limitation, business, commercial, financial, technical, insurance, accounting, broking, actuarial, environmental or information technology matters), and you will be responsible for deciding whether documents or advice prepared or reviewed by us meet your commercial objectives. We will not be responsible for the accuracy of any computer model’s algorithms or for any formulae in the documentation. We will advise you based on our interpretation of the relevant legislation, case law and practice at the time the advice is given. Unless we have expressly agreed to the contrary, we will not be responsible for updating our advice, even if the relevant law and practice changes thereby affecting our conclusions and even if you remain a current client in relation to any or all matters.
Cresco may, as appropriate, involve third parties in the performance of the services on behalf of you and will apply the necessary diligence in this respect.
We are not liable for any acts or omissions of such third parties. Furthermore Cresco is authorized to accept, on behalf of you, limitations of liability of third parties.
ARTICLE 4 — FEES AND INVOICING
4.1. Unless agreed otherwise, the services performed by us will be charged on an hourly basis whereby the applicable hourly rate varies according to the seniority of the involved lawyer(s). The fees are in principle calculated based on the number of hours worked, multiplied by the applicable hourly rates that have been agreed with you, plus a lumpsum 6% surcharge for secretarial or other office expenses. We may update our hourly rates from time to time (at least annually) and will notify our clients thereof. Besides the fees, any external expenses incurred by us will be charged to you. Specific costs (e;g. Docusign, whereby per envelope of 5 docusign signature an additional amount of EUR 150 (ex. VAT) will be charged) and expenses (e.g. travel expenses) are charged separately, VAT included. The fees do not include VAT.
4.2 We normally invoice our services monthly. Our invoices are payable within thirty ( 3 0 ) days of the invoice date, failing which we may suspend our services or exercise our right to stop acting under article 10. In case of late payment exceeding a period of sixty (60) days following the invoice date, a lumpsum amount of 10% interest will be automatically due and payable. . In case of a late payment and following the serving of a notice of default by Cresco late payment interests are due at the statutory rate.
4.3. Any dispute with regard to our invoices should be notified to us within thirty (30) days following the invoice date. In the absence of such notice, the invoice shall be deemed to have been accepted.
4.4. We reserve the right to request payment of a retainer before initiating our services.
4.5. You will also remain liable to pay our fees even if a third party agrees to pay them.
4.6. If you receive from us a fee quote in a particular currency for a matter which will involve work from more than one jurisdiction, we reserve the right to revise this quote should there be major exchange rate movement between the date on which the quote was given and the date of the relevant invoice.
ARTICLE 5 — TAXES AND EXCHANGE CONTROLS
5.1. All services are subject to Belgian VAT at the applicable rate (currently 21%) on condition that such services, under the Belgian VAT Code, are considered to have been supplied in Belgium. If our services are considered to have been supplied abroad, all sums quoted and invoiced do not include VAT, but such services can be subject to VAT in the country where you are located. In the event that an amount is invoiced exclusive of any value added or other sales tax, but the relevant tax authority deems that value added or other sales tax is owing on that amount, you will remain liable to pay us an amount equivalent to such value added or other sales tax (including any interest for late payment thereon), which payment shall be made within thirty days of us notifying you to this effect.
5.2. If your payment of our fees or our receipt of such payment is subject to exchange or other similar control, you will use your best endeavours to obtain (or where appropriate help us to obtain) the necessary consents as soon as possible after you receive an invoice from us and then ensure that we receive prompt payment in accordance with such consents. If exchange control approval has not been obtained within six months from the date of our invoice then, if so lawfully requested by us at any time thereafter, you will pay into an account designated by us the amount in local currency equivalent to the amount outstanding (converted at the date of our request).
ARTICLE 6 — DOCUMENTS AND DOCUMENT STORAGE
6.1. We will retain copyright in all documents we draft and produce in relation to any matter (and, subject to our duties of confidentiality to you, may therefore use the intellectual property rights in the documents as the basis for advising on other matters) but you will have an unlimited license to use those documents for your own purposes.
6.2. In some circumstances, in particular, if you have not paid all of our invoices, we may have the right to keep documents that belong to you even if you ask us to return or destroy them.
6.3. We may destroy documents relating to a matter when we consider that we do not need to keep them, failing which we reserve the right to charge for our storage costs.
6.4. We are legally compelled to archive all files once the matter is closed. The original evidence or documents that have been entrusted to us are returned to you. Archives are kept for a period of ten (10) years from the matter’s closing date and are automatically destroyed at the end of the ten-year period.
ARTICLE 7 — LIABILITY
7.1. These general terms and conditions apply to all services delivered by Cresco for you, even if you commissioned an assignment with a view of execution by one or more specified persons. Cresco is exclusively liable for the performance of services by its lawyers and employees. Without prejudice to your right to bring a claim against us providing the relevant services, you agree, to the extent such agreement is enforceable under applicable law and regulations, that there is no assumption of a personal duty of care by, and you will not bring any claim against, any Relationship Partner or other member, shareholder or employee or lawyer of, or consultant to us.
7.2. If we and any other Person are both liable to you in respect of the same damage, or another Person and/or you have caused or contributed to that damage, our liability to you will be limited to such amount as is just and equitable, having regard to the extent to which we, that Person and/or you are liable for, or have otherwise caused or contributed to, that damage. Any limitation, exclusion, restriction or settlement (however arising) including inability to pay or insolvency, affecting the possibility of recovering compensation from any Person, will be ignored in determining whether and to what extent that Person is liable or responsible for that damage and the amount of our liability.
7.3. Our services are for your benefit and may not be used or relied upon by anyone else without our prior written consent. Nor can we accept liability for the acts or omissions of any third party we may instruct on your behalf or for the default of any financial institution with which we deposit money on your behalf.
7.4. Except to the extent that is legally not permissible to limit liability, any and all liability of us in respect of any work performed by or on behalf of us, or otherwise relating to an assignment given to us is limited to the amount that is effectively paid out in the particular case under the professional indemnity insurance program taken out by us. We have insurance programs with MS Amlin Insurance SE (Koning Albert II laan 37 – 1000 Brussels), AG Insurance (E.
Jacqmainlaan 53 – 1000 Brussels), and HDI Global Specialty SE (Belgian Branch – Tervuren- laan 273/4 – 1150 Brussels) Coverage applies for all countries, except for the US and Canada. Upon written request, we can take out supplementary insurance for the purpose of a particular file, and if we choose to do so, any additional cost resulting from this will be charged to you.
7.5. You shall waive the right to seek compensation in case you have not brought your claim for compensation to the competent courts within one year after the facts concerned were known to you or could reasonably have been known to you.
ARTICLE 8 — ELECTRONIC COMMUNICATIONS AND DATA PROTECTION
We may communicate with you electronically. You accept the risks involved in such communication, except in the case of our gross negligence or willful default. We may also monitor communications in order to establish facts, to determine that communications using our systems are relevant to our business, to comply with applicable law and regulations, or to develop and manage our relationship with you. You warrant and undertake to us that all Personal Data disclosed to us have been obtained and processed by you or on your behalf, and will be disclosed to us, in compliance with all relevant Data Protection Legislation, and you will not do or omit to do anything in effecting this disclosure or otherwise that would cause us to be in breach of any relevant Data Protection Legislation (to the extent applicable to us). You agree that we may transfer Personal Data to our service providers, including to jurisdictions outside the European Economic Area. If you are not the data subject, you will procure the consent of the data subject(s) to such transfer or take such other steps as are necessary to ensure that such transfer complies with all the relevant Data Protection Legislation.
ARTICLE 9 — CONFIDENTIALITY
9.1. The advice rendered by us is solely for the us by you and is only given in the context of the assignment for which it has been produced. Third parties may not use Cresco’s advice, unless with the prior written consent of us. Furthermore, and unless otherwise agreed, no third party may rely on it. You accept that you will not disclose our advice to any third parties without our consent (except, if necessary, to other professional advisers of you, but without any obligation and/or liability of Cresco towards them).
9.2. We will treat any information obtained from you that is not in the public domain as confidential. However, we may sometimes have to disclose information to regulatory authorities or under applicable law and regulations. If so, we would (where permissible and practicable) inform you of the request or requirement to disclose.
9.3. In accordance with applicable law and regulations, we may occasionally use the name of a client for marketing purposes or in a context that may be considered as advertising.
ARTICLE 10 — TERMINATION
Our agreement for a particular matter will terminate upon delivery of our final invoice. Otherwise, and to the extent such agreement is enforceable under applicable law and regulations:
(a) you may at any time upon reasonable notice terminate our agreement on any or all matters by written notice;
(b) we may terminate our agreement on any or all matters by written notice if we have good reason (such as delay in payment of our fees) and upon reasonable notice; and
(c) in either case, you will pay our costs up to the time of termination.
ARTICLE 11 — GOVERNING LAW AND DISPUTE RESOLUTION
11.1 Cresco attorneys are registered with the Antwerp, Hasselt and Ghent Bar and are bound by these organizations’ professional rules and code of conduct.
11.2 These terms and conditions and our agreement on any matter (including any non-contractual obligations arising out of or in connection with these terms and conditions or our agreement on any matter) is governed by Belgian law.
11.3 Any Dispute between us and one or more parties to this agreement must be notified to the other party or parties (as the case may be) in writing. The notice must give details of the Dispute. The parties to the Dispute must first attempt to resolve it amicably by negotiation. If the Dispute is not resolved amicably by negotiation within thirty days from the date on which notice was given in accordance with this article 11, either party may begin proceedings in accordance with the pro- visions which follow in this article 11.
11.4 All Disputes are to be submitted to the exclusive jurisdiction of the competent courts in Antwerp, section Antwerp, which will exclusively hear and decide on the Dispute, without prejudice to the competence of any professional organizations that have authority over Cresco.
ARTICLE 12 — ANTI-MONEY LAUNDERING LAWS
Further to the Belgian Law of 18 September 2017 on the prevention of money laundering and financing terrorism and on restriction of cash usages, as amended and supplemented from time to time (the AML Laws) Cresco has to identify and verify the identity of its clients, representatives, and ultimate beneficiaries (UBOs) as well as take all appropriate measures to assess the characteristics of its clients and the purpose and nature of the business relationship as part of its duty of constant vigilance. You undertake to spontaneously provide, at the latest when the business relationship with Cresco is entered, all the information (including but not limited to any non-public information as deemed necessary according to Cresco) and to answer all the questions that Cresco considers relevant to fulfil its obligations and allow Cresco to save a copy of these documents in a dedicated database.
In addition, you will inform Cresco as soon as possible about any change and will submit proof of such change. You also commit to informing Cresco of any past or ongoing criminal and/or tax related investigation and/or regularization you would direct or indirect be involved in. You will also disclose to Cresco (if applicable) the fact that you qualify as a (close relative or close associate of a) Politically Exposed Person or that the origin of your wealth and/or the source of your funds originates from crypto currencies.
If the obligations referred to above are not fulfilled before, or, at the time of entering the business relationship with Cresco, Cresco reserves the right not to enter into the business relationship or to terminate the existing relationship with you. If Cresco assists you in your legal defense or in the assessment of your legal position, Cresco is strictly bound by the obligation of professional secrecy.
The AML Law however requires Cresco, in specific situations set out in the AML Laws, to inform the President of the bar as soon as possible once Cresco knows, suspects, or has reasonable grounds to believe that funds, transactions (or attempts to carry out those transactions), or facts relating to money laundering and the financing of terrorism are being used or carried out. The President of the bar, who oversees professional secrecy in the profession, will report any suspicions, if appropriate, to the Financial Information Processing Unit (htttps://www.ctif-cfi.be).
ARTICLE 13 — DAC6
When you instruct us with a mission which qualifies as a “reportable cross-border transaction” (as defined in the Act of 20 December 2019 transposing Council Directive (EU) 2018/822 of May 2018 amending Directive 2011/16/EU as regards mandatory automatic exchange of information in the field of taxation in relation to reportable cross-border arrangements), Cresco will be required to comply with applicable reporting obligations, save where the Belgian legislator were to allow that legal privilege be invoked.
ARTICLE 14 — SEVERABILITY
The provisions of these general terms and conditions shall be severable if any of the provisions of this agreement is held by a court or tribunal or competent jurisdiction to be invalid, void or otherwise unenforceable, and the remaining provisions shall remain enforceable to the fullest extent permitted by law.
