1. General. ATLAS Accountancy Tax Legal & Advisory Services (“ATLAS”) is a partnership in accordance with Aruba law between limited liability companies, with registered office in Aruba and registered at the Commercial Register of the Aruba Chamber of Commerce. The person who is a direct or indirect shareholder and/or director of a limited liability company that is a partner in ATLAS and who performs professional activities for the benefit of ATLAS can be referred to by or on account of ATLAS as a “partner”, such in accordance with generally accepted professional practice. During the performance of his professional activities the person referred to as such exclusively acts at the expense and risk of ATLAS. These general terms and conditions are applicable to all legal relationships between the parties, unless expressly determined otherwise by ATLAS in writing.
2. Conclusion of the engagement. The engagement will become effective when the proposal or engagement letter signed by ATLAS and the party that issues an assignment (“Client”) has been received by ATLAS or alternatively at the moment ATLAS has started the performance of activities for Client at the (oral) request of Client. The proposal or engagement letter is based on the information supplied to ATLAS by Client at the time of the same. The parties are free to demonstrate that the engagement has been concluded in a different manner. Client alone shall bear the responsibility for determining the scope of the engagement.
3. Services. It is understood and agreed that ATLAS’s services may include advice and recommendations; but all decisions in connection with the implementation of such advice and recommendations shall be the responsibility of, and made by, Client. In the event of a claim by a third party relating to services under the proposal or engagement letter to which these terms and conditions are attached, Client will indemnify ATLAS and its partners and personnel from all such claims, liabilities, cost and expenses, except to the extent determined to have resulted from the intentional or deliberate misconduct of ATLAS personnel. ATLAS determines in which manner and by what person the engagement is carried out, and shall not, at any time, be required to commit any act or omission that is in contravention of, or incompatible with, laws and regulations.
4. Time Limits. Time limits within which the operations must be completed can only be regarded as a fatal deadline if this has expressly been stipulated or if this follows from the nature of the engagement. To the extent that these general terms and conditions do not determine otherwise, claims and other authorities of Client – on any account whatsoever – vis-à-vis ATLAS shall in any case expire one year after the moment when Client became or could within reason have become familiar with the existence of said rights and authorities.
5. Fees. The fees of ATLAS will be determined on the basis of the time spent and its applicable hourly rates, plus an amount for office and other expenses, turnover tax and third-party costs. The fee does not depend on the outcome of the awarded assignment. ATLAS is entitled to issue partial invoices at regular interval to Client for services performed or to be performed and to demand a retainer fee.
6. Payment of Invoices. Payment by Client must, without deduction, discount or setoff, take place within the stipulated payment term, however in no case later than seven (7) days after the date of the invoice. Objections to any amounts charged shall not suspend Client’s obligation to pay. Payment must take place in AWG or USD, unless indicated otherwise, through remittance to a bank account to be designated by ATLAS. If Client does not pay within the stipulated payment term, then Client shall, without any further notice of default and without prejudice to the other rights of ATLAS, be liable to pay the statutory interest as from the due date up to the date of satisfaction in full. All judicial and extrajudicial (collection) costs within reason incurred by ATLAS as a result of the non-compliance by Client with its payment obligations shall be at the expense of Client. If, at the discretion of ATLAS, the financial position or the payment history of Client gives cause to the same then ATLAS shall be authorized to suspend its activities and/or ATLAS shall be authorized to desire (additional) security in a form further to be determined by ATLAS. Should this take place and should Client fail to provide the desired security then all that which Client is liable to pay to ATLAS on any account whatsoever shall immediately fall due, without prejudice to the other rights of ATLAS. In case of a jointly awarded assignment Clients are, to the extent that the activities were performed for the benefit of one or more of Clients, jointly and severally liable for the payment of the full invoiced amount.
7. Term. Unless terminated sooner in accordance with its terms, this engagement shall terminate on the completion of ATLAS’s services hereunder. Unless otherwise stated in the proposal or engagement letter, this engagement may be terminated by either party at any time by giving written notice to the other party not less than 30 calendar days before the effective date of termination.
8. Electronic communication. The parties can communicate with each other through electronic means (including e-mails and fax). ATLAS shall not be liable for damages resulting from the use of electronic means of communication, barring to the extent that the damages are the result of intent or gross negligence.
a) ATLAS. ATLAS has created, acquired or otherwise has rights in, and may, in connection with the performance of services hereunder, employ, provide, modify, create, acquire or otherwise obtain rights in, various concepts, ideas, methods, methodologies, procedures, processes, know-how, and techniques; models (including, without limitation, function, process, system and data models); templates; the generalized features of the structure, sequence and organization of software, user interfaces and screen designs; general purpose consulting and software tools, utilities and routines; and logic, coherence and methods of operation of systems (collectively, the “ATLAS Technology”).
b) Ownership of Deliverables. Except as provided below, upon full and final payment to ATLAS hereunder, the tangible items specified as deliverables or work product in the engagement letter or proposal to which these terms are attached (the “Deliverables”) will become the property of Client. To the extent that any ATLAS Technology is contained in any of the Deliverables, ATLAS hereby grants Client, upon full and final payment to ATLAS hereunder, a royalty-free paid-up, worldwide, non-exclusive license to use such ATLAS Technology in connection with the Deliverables.
c) Ownership of ATLAS Property. To the extent that ATLAS utilizes any of its property (including, without limitation, the ATLAS Technology or any hardware or software of ATLAS) in connection with the performance of services hereunder, such property shall remain the property of ATLAS and, except for the license expressly granted in the preceding paragraph, Client shall acquire no right or interest in such property. Nothing in this Agreement shall be construed as precluding or limiting in any way the right of ATLAS to provide consulting or other services of any kind or nature whatsoever to any person or entity as ATLAS in its sole discretion deems appropriate. In addition, and notwithstanding anything in this Agreement to the contrary, the parties acknowledge and agree that (a) ATLAS will own all right, title, and interest, including, without limitation, all rights under all copyright, patent and other intellectual property laws, in and to the ATLAS Technology and (b) ATLAS may employ, modify, disclose, and otherwise exploit the ATLAS Technology (including, without limitation, providing services or creating programming or materials for other clients).
10. Limitation on Warranties. This is a services engagement. ATLAS warrants that it will perform services hereunder in good faith. ATLAS disclaims all other warranties, either express or implied, including, without limitation, warranties of merchantability and fitness for a particular purpose.
11. Limitation on Damages. If Client demonstrates that it incurred damages due to an error of ATLAS that would have been avoided if due care had been exercised, then ATLAS shall only be liable for these damages up to the amount of the fee for the relevant assignment over the last calendar year or, in case of a non-recurring assignment, up to the amount of the fee for the relevant assignment, with a maximum of USD 50,000. If the engagement is carried out for more than one (legal) entity/person, the limitation of liability with respect to the engagement shall apply to all these (legal) entities/persons jointly. Any right of action or recourse shall be exercise exclusively against ATLAS and not against the directors of the limited liability companies that are partners in ATLAS, their shareholders or their employees. In furtherance and not in limitation of the foregoing, ATLAS will not be liable in respect of any decisions made by Client as a result of the performance by ATLAS of its services hereunder. The provisions of this Paragraph shall apply regardless of the form of action, damage, claim, liability, cost, expense, or loss, whether in contract, statute, tort (including, without limitation, negligence), or otherwise. ATLAS shall not be liable for damages of the Client that occur due to the fact that the Client supplied incorrect or incomplete information.
12. Cooperation. Client shall cooperate with ATLAS in the performance by ATLAS of its services hereunder, including, without limitation, providing ATLAS with reasonable facilities and timely access to data, information and personnel of Client. Client shall be responsible for the performance of its employees and agents and for the accuracy and completeness of all data and information provided to ATLAS for purposes of the performance by ATLAS of its services.
13. Force Majeure. Neither Client nor ATLAS shall be liable for any delays resulting from circumstances or causes beyond its reasonable control, including, without limitation, fire or other casualty, act of God, labor dispute, war or other violence, or any law, order or requirement of any governmental agency or authority.
14. Independent Contractor. It is understood and agreed that each of the parties hereto is an independent contractor and that neither party is, nor shall be considered to be, an agent, distributor or representative of the other. Neither party shall act or represent itself, directly or by implication, as an agent of the other or in any manner assume or create any obligation on behalf of, or in the name of, the other.
15. Confidentiality. Client and ATLAS acknowledge and agree that all information communicated to either Client or ATLAS by the other party in connection with the performance by a party under this Agreement shall be received in confidence, shall be used only for purposes of this Agreement, and no such confidential information shall be disclosed by the respective parties or their agents or personnel without the prior written consent of the other party. Except to the extent otherwise required by applicable law or professional standards, the parties’ obligations under this section do not apply to information that: (a) is or becomes generally available to the public other than as a result of disclosure by Client or ATLAS, (b) was known to either Client or ATLAS or had been previously possessed by Client or ATLAS without restriction against disclosure at the time of receipt thereof by Client or ATLAS, (c) was independently developed by Client or ATLAS without violation of this Agreement or (d) Client and ATLAS agree from time to time to disclose. Each party shall be deemed to have met its nondisclosure obligations under this paragraph as long as it exercises the same level of care to protect the other’s information as it exercises to protect its own confidential information. ATLAS may retain, subject to the terms of this paragraph, copies of Client’s confidential information required for compliance with applicable professional standards or internal policies.
16. Survival. Provisions of these general terms and conditions of which the express or implied intention is that after termination of the agreement they shall remain in full force and effect between the parties, shall remain valid and the parties shall remain bound by the same.
17. Assignment. Except as provided below, neither party may assign, transfer or delegate any of the rights or obligations hereunder without the prior written consent of the other party. ATLAS may assign its rights and obligations hereunder to any affiliate that is a successor in interest to all or substantially all of the assets or business of ATLAS practice, without the consent of Client.
18. AML/CFT. The Aruba State Ordinance for the Prevention and Combating of Money Laundering and Terrorist Financing (‘AML/CFT State Ordinance’) provides rules for establishing and verifying client identity and for reporting unusual transactions. The purpose of these rules is to prevent and combat money laundering and terrorist financing. As ATLAS falls within the scope of this Ordinance, it is required to comply with its rules. Client must provide all documents and information necessary to this purpose. Failure to do so will result in immediate termination of the engagement between ATLAS and Client, if any.