General Business Terms

The Dutch text of these General Business Terms can be found here.
The Turkish text of these General Business Terms can be found here.

Actus Notarissen N.V. General Business Terms

Article 1: Public Limited Liability Company

Actus Notarissen N.V. (“Actus”) is a public limited-liability company incorporated under the laws of the Netherlands having its registered offices in Amsterdam, the Netherlands whose object consists in carrying on the notarial practice. An enumeration of those who hold shares in Actus’s capital or, at any rate, of those who through their respective holding companies hold shares in Actus’s capital – and who in accordance with interna-tional usage are also known as “partners” – will be provided upon request. Actus is entered in the (Netherlands Chamber of Commerce and Industry’s) Commercial Register under file number 34303539.
 

Article 2: Scope

2(1) The present General Business Terms apply to any and all work (to be) performed by Actus or on Actus’s behalf and to any and all juristic relationships entertained between Actus of the one part and third parties of the other part.
2(2) The stipulations and conditions set out in the present General Business Terms have inter alia been arrived at and negotiated on behalf and for the benefit of Actus’s (executive) directors and shareholders, the (executive) directors of said shareholders and anyone who is, or has been, an Actus operative be it as a partner, an employee, an adviser, a third-party contractor or otherwise.
2(3) The present General Business Terms shall apply to any and all work referred to in paragraph 2(1) above having been commissioned subsequent to the date as at which these Business Terms were filed with the Court Registry referred to at the foot of this document. No further reliance may be placed on any such general terms and conditions as may have been in use with Actus at an earlier juncture where it concerns any such work as referred to in the preceding sentence of the present paragraph 2(3).
 

Article 3: Contractor and Third Parties

3(1) Actus shall be the sole contractor for any and all work. All engagements shall solely be accepted and performed by Actus including in the event of it being, or having been, the intention – be it explicitly or tacitly – that a particular engagement should be carried out by a specific person. The applicability of Sections 404, 407(2) and 409 of Book 7 of the Netherlands Civil Code has expressly been ruled out.
3(2) The performance of engagements having been assigned to Actus shall solely be for the benefit of the principal. None of Actus’s recommendations to the principal are to be made available to, or for the inspection of, third parties unless Actus’s prior written approval has first been obtained. No rights may be derived by third parties from the performance of the work on the principal’s behalf.
 

Article 4: Enlisting of Third Parties

4(1) In the event that third parties need to be enlisted in connection with the (performance of the) work with which Actus has been charged, Actus where possible shall liaise in advance with the principal while observing due care in selecting the relevant third-party contractors. No liability shall rest with Actus for any such errors or flaws committed by any such third party while the latter was acquitting itself of its duties. Actus shall have the right to accept on the principal’s behalf any such limitation of liability as any such third-party contractor may have stipulated for itself.
4(2) Any such principals as avail themselves of the services performed by Actus, under the labels of “Actus Nederland” (Actus Netherlands) or “Vivaldi Notarissen” (Vivaldi Civil Law Notaries), in collaboration with other Actus-enlisted notarial practices shall be bound by such modi operandorum and communication structures as agreed at the level of the relevant joint venture, without there being any need in any such scenario for liaising as per paragraph 4(1) above.
4(3) Principals shall concur with Actus furnishing such third parties and other notarial practices as referred to in paragraphs 4(1) and 4(2) above, respectively with any such information as may be required in order for the service having been ordered being accurately and promptly performed. Personal details too shall be conveyed to the aforementioned third parties and/or partnering notarial practices in such context.
4(4) Actus shall solely furnish such information as referred to in paragraph 4(3) above in aid of the service supply having been ordered from it. Principals shall concur with Actus and the third parties and other notarial practices referred to in paragraphs 4(1) and 4(2) above, respectively making use (inter alia) of electronic communication devices in aid of the information supply referred to in the present paragraph 4(4).
 

Article 5: Limitation of Liability

5(1) Actus’s liability with respect to work (to be) performed by it or on its behalf or work that is related in any other way to any engagement having been assigned to Actus shall be strictly confined to the claimable amount(s) insured as per the professional indemnity insurance contract(s) having been taken out by Actus augmented by the value(s) of such deductible(s) as is (are) chargeable to Actus itself, in the relevant scenario, by virtue of the terms and conditions of the relevant insurance contract(s). Information is to be disclosed upon request concerning the (cover provided by the) professional indemnity insurance contract(s) having been taken out by Actus. ”Liability with respect to work (to be) performed” shall be deemed to include liability for wilful disobedience.
5(2) Any and all liability [on the part of Actus] shall remain confined to thrice the amount for which Actus during the relevant calendar year had charged the principal in the matter at hand, to a maximum of € 10,000.00 (ten thousand euros only), in the event that no benefits are paid out, for whatever reason, under the insurance referred to in paragraph 5(1) above.
5(3) Any and all professional liability on the part of Actus shall be excluded irrespective of whether and if so, for up to what amount Actus might be able to secure, or could have secured, payment of insurance benefits in a professional liability context, by way of departure from the provisions set out in paragraphs 5(1) and 5(2) above, with the proviso, however, that an exception shall be made for scenarios involving intentional act or gross negligence, where it concerns such work/service supply as enumerated below:
- the provision of members of the general public using the “Actus Telefoonservice” (Actus Telephone Information Service) with (complimentary) advice of a general nature;
- the provision of members of the general public using “Actus Notaris chat” (Actus Notarial Chat Service) with (complimentary) advice of a general nature;
- the provision in any other manner of members of the general public with (complimentary) advice of a general nature;
- service supply by Actus to other notarial practices with which Actus has concluded an agreement to the relevant effect (be it or be it not through Actus’s business unit named “Actus Nederland” (Actus Netherlands) and/or under Actus’s label of “Vivaldi Notarissen” (Vivaldi Civil Law Notaries));
- electronic service supply where the principal fails (or has failed) to abide by the instructions as per article 10 below and/or by more detailed instructions in the matter and this has partially been the cause of the damage or loss.
5(4) Any claim, be it vis-à-vis Actus or vis-à-vis any such individuals or legal entities as referred to in article 2 above, shall in any event elapse on expiry of a 12 (twelve) month term of the date as at which the injured party first became aware of, or should have been familiar with, the harmful event in question.
 

Article 6: Indemnification

The principal shall grant Actus indemnification in connection with and compensate Actus for any and all third-party claims, assertions of rights or causes of action vis-à-vis Actus or brought against Actus at any time arising directly or indirectly from or having bearing on the work or services (to be) performed by Actus on the principal’s behalf or having bearing otherwise on the principal having engaged Actus including damage or loss, costs and expenditure incurred by Actus in connection with any such claim, assertion of rights or cause of action, all of this with the exception of scenarios involving intentional act or gross negligence on Actus’s part.

Article 7: Fee, Disbursements and Office Expenses

7(1) The principal shall owe Actus a fee whose computation shall be based on the number of hours worked multiplied by such applicable hourly rates as are determined by Actus from time to time, the level of which rates may change while the engagement is under way.
7(2) The following shall apply by way of departure from the provisions as per paragraph 7(1) above:
- in the event that a customary fixed office rate applies, it shall be this rate which shall be due and payable by the principal;
- in the event that a system of modular rates applies, it shall be the rate corresponding with the applicable modules which shall be due and payable by the principal;
- in the event that quotes have been issued for particular work, Actus shall be authorised to invoice any additional work of which there was no knowledge at the time the principal first engaged Actus on the basis of hours worked, including in the event of the principal or third parties being late furnishing Actus with particular records and/or details, with Actus promptly notifying its principal accordingly as the occasion arises.
7(3)(i) In addition to owing Actus the latter’s fee, the principal shall reimburse Actus for such disbursements as Actus has incurred on the principal’s behalf as well as being charged by Actus for the latter’s fixed offices expenses (such as postage, telephone, facsimile and photocopy expenses), the latter office expenses being fixed at a percentage of the fee.
7(3)(ii) Third-party fees charged in connection with juristic acts (such as land registry fees, other charges relating to electronic information exchange, administrative fees charged by the authorities, court fees and the like) shall at all times be charged on at cost to the principal, with the proviso that any changes to any such amounts in the course of the engagement being performed are to be charged on to the principal on a one-to-one basis.
7(3)(iii) Changes to such value-added tax rate as is due and payable shall at all times be charged on to the principal.
7(4) All amounts due and payable are to be augmented by such value-added tax – calculated at the prevailing rate – as they may be liable for.
7(5) Prepayments if any are to be set off against the final invoice under the engagement, with the principal being deemed to have accepted the accuracy of the invoice once the engagement has terminated unless the principal previously lodged his (its) written objection.
7(6) Actus shall additionally be authorised to charge on costs and fees in the event of any one of the following scenarios occurring:
(a) that of Actus being served with (a) writ(s) and/or correspondence originating with or on behalf of any party having (had) involvement in a notarial instrument executed in the presence of any one of the civil-law notaries associated with Actus involving the writ(s)/correspondence in question being issued/dispatched, for the attention of any other party having (had) involvement in the same notarial instrument, to the notarial office as the address for service having been elected at the time by the party of the other part, all of this with the proviso that the costs and fees in connection with the associated and resultant duties are to be charged on in any such scenario to the person(s) upon whose instructions the writ is being issued or the correspondence is being served;
(b) that of Actus being served with (a) writ(s) and/or correspondence originating with or on behalf of any third party involving the writ(s)/correspondence in question being issued/dispatched for the attention of any party having (had) involvement in a notarial instrument executed in the presence of any one of the civil-law notaries associated with Actus, all of this with the proviso that the costs and fees in connection with the associated and resultant duties are to be charged on in any such scenario to the person(s) to whom the writ is being issued or for whose attention the correspondence has been dispatched or upon whom the correspondence is being served, as the case may be;
(c) that of requests being made for the release of (a) transcript(s) and/or bailiff’s copy (copies) of (an) instrument(s) or (a) duplicate(s) of documents kept in custody by Actus on inclusion most explicitly of invoices and fee statements, all of this with the proviso that the costs and fees in connection with the associated and resultant duties are to be charged on in any such scenario to the person(s) having submitted the relevant request.
7(7) Such costs as referred to in paragraph 7(6) above are to be fixed either at the office rates as Actus may from time to time adopt or, alternatively, in accordance with the provisions as per paragraph 7(1) above.
7(8) The civil-law notary shall be at liberty to suspend any such duties as suffer a modicum of delay in Actus’s opinion until such time as the costs have been settled up.
7(9) In the event of the invoice being raised, upon the principal’s request, in the name of a third party such as a legal entity under incorporation, this shall by no means discharge said principal himself (itself) from the obligation to settle up the invoice in question. Any scenario of conjoined commissioning shall involve joint and several liability for payment resting with the principal and the latter’s fellow principal.
 

Article 8: Terms of Payment of Invoices

8(1) Payment in respect of invoices pertaining to specific concrete (notarial) instruments (such as deeds of conveyance, mortgage deeds, deeds of issue under leasehold, instruments providing for property division into apartment rights, share transfer instruments and the like) that are customarily settled up in advance shall be seen to no later than by the time the relevant instrument comes up for execution where no earlier payment had been agreed.
8(2) Actus shall be authorised where it concerns engagements of an ongoing nature pertaining for example to estate settlement or post-divorce property division to raise monthly invoices in arrears for work performed and expenses incurred.
8(3) Invoices raised by Actus – not being such invoices as referred to in paragraph 8(1) above – shall be settled up within a 14 (fourteen) day term each of the relevant invoice date.
8(4) Actus shall be entitled in the event of tardy payment of any invoice it has raised to charge on statutory interest on the outstanding amount from the 15th (fifteenth) day of the invoice date onwards.
 

Article 9: Interest Compensation

In the event of funds having been entrusted to Actus on which the notarial practice itself collects credit interest, Actus shall compensate the person or party on whose account said funds are being kept in custody at an interest rate the level of which Actus is to fix from time to time, which interest rate shall be market-led, for such term as credit interest continues to be collected by Actus in respect of the funds in question. Both the interest compensation and the exceptions shall be governed by the instructions as per Sections 4 to 7 inclusive of the Regulations on the Notarial Profession as adopted on 11 December 2012 by the (Dutch) Minister for Security and Justice, Netherlands Government Gazette 2012, 26483, where appropriate in said Regulation’s subsequent amended phrasing.
 

Article 10: Deposit Regime

10(1) The provisions as per the paragraphs below of the present article 10 shall apply to:
- funds having been deposited in one of Actus’s escrow accounts with respect to which the notary or the latter’s substitute has ascertained that no (comprehensive) agreement has as yet been achieved between the parties having involvement in the deposit set-up where it concerns the release of the funds; and/or
- funds being required to be deposited at the notary’s by virtue of such regulations as prevail within the notarial profession.
10(2) It is only in either one of the following scenarios that Actus is to proceed with the release of any amount forming part of a notarial deposit to any one of the parties having involvement in the relevant deposit:
- where Actus has received from all parties having involvement in the deposit written and, where appropriate, identical instructions ordering it to proceed with payment; or
- where a court ruling to the relevant effect has been handed down, which ruling has been rendered final or was issued by way of a provisionally enforceable judgment, in which case Actus is to release the funds in accordance with said ruling.
Any interested party having the status of party to a notarial deposit in connection with the above shall merely entertain a provisional claim vis-à-vis Actus, in that said claim shall be subject to the condition precedent of a particular amount eventually being confirmed as accruing to a particular party as the beneficiary thereof, to the degree to which such may be shown to be the case.
10(3) The provisions as per the present article 10 shall apply to any and all cases involving a deed of deposit or escrow agreement not being to hand or the deed of deposit or escrow agreement failing to provide for a payment arrangement which the notary would characterise as unequivocal.
 

Article 11: Provisions Relating to Electronic Transactions (Including of a Legal Nature)

11(1) Given that the legal status of electronic information is identical to that of written instructions, statements and notifications, it follows that the registration in writing or reproduction in writing of electronic information having been received by Actus shall constitute comprehensive proof between the client and Actus unless the principal successfully submits evidence to the contrary.
11(2) Actus shall be authorised to furnish the principal with draft deeds, correspondence, statements of completion and the like via e-mail or using an alternative electronic communication method where the principal himself (itself) has been communicating with Actus via e-mail or using an alternative electronic communication method, or has provided Actus with alternative confirmation of his (its) approval of the use of e-mail or alternative electronic communication method.
11(3) The following shall apply in the event that the principal with a view to electronic service supply vis-à-vis him (it) is provided, be it by Actus or on Actus’s behalf, with a security code and/or a password:
11(3)(i) Security codes and passwords shall be made available on a strictly personal and non-transferable basis. It shall be obligatory for the principal to observe secrecy vis-à-vis any and all others including relatives, household members and proxy holders where it concerns such security code/password as he (it) has been provided with.
11(3)(ii) In the event that the principal knows or suspects that his (its) security code/password has become known to third parties or has come to be used by third parties, he (it) shall be under the obligation forthwith to advise Actus accordingly.
11(3)(iii) In the event that the principal has the option using a security code/password to access a secured area of any Actus-owned or Actus-administered web site, it shall be up to the principal continually to make sure that he (it) is, and continues to be, within the relevant secured area.
11(3)(iv) It shall not be permissible for the principal to use, or permit the use of, such security code(s)/password(s) as Actus has provided him (it) with for any purposes other than those for which said security code(s)/password(s) was/were originally made available.
11(3)(v) The principal shall strictly abide by all of Actus’s instructions on the topic of electronic service supply, with Actus being authorised at any time to amend said instructions on instant notification accordingly of its principal.
11(4) In the event that the principal wishes to avail himself (itself) of Actus’s electronic service supply, the principal at his (its) own expense shall provide for the purchase of all of the connections, (telecommunication) equipment and software needed or having been specified by Actus for the purpose.
11(5) Actus shall be authorised solely in aid of its electronic service supply to log as well as use information pertaining to that which has been referred to in paragraph 11(4) above, and shall observe the regulations as per the Personal Data Protection Act of the Netherlands where said regulations apply.
11(6) The principal shall be under the obligation strictly to adhere to any and all such instruc-tions pertaining to the items referred to in paragraph 11(4) above as Actus has publicised.
11(7) The following shall moreover apply to Actus’s electronic service supply, without prejudice to the provisions set out in paragraph 11(5) and 11(6) above: no liability whatsoever shall at any time (come to) rest with Actus in respect of:
- damage or loss – irrespective of the nature thereof – suffered by the principal owing to any inaccuracy in or corruption or delay of the electronic information having been made available to Actus by the principal owing to the disclosure to unauthorised parties, the alteration and/or the dispatch of such information;
- damage or loss – irrespective of the nature thereof – arising out of the unavailability of the electronic service supply or out of any inaccurate, outdated or incomplete information and/or calculations where the damage or loss is not attributable to intentional act or gross negligence on Actus’s part;
- damage or loss – irrespective of the nature thereof – suffered by the principal owing to any inaccuracy in or corruption or delay of the electronic information to be made available to Actus, in aid of the latter’s service supply, by third parties (such as the Land Registry and Public Records Agency, the Municipal Personal Data Base, the Identification Records Verification System, the Insolvency Register, the Guardianship Register, the Central Register of Wills, the Successions Register and other electronic registers and records);
- damage or loss – irrespective of the nature thereof – suffered by the principal owing to malfunctioning of the principal’s (telecommunication) equipment and/or software;
- damage or loss – irrespective of the nature thereof – arising out of any actions or omissions on the principal’s part in contravention of the provisions as per the present article 11;
- damage or loss arising out of any security device being stolen, going missing, being abused, being damaged, being lost and/or failing (properly) to operate;
- damage or loss – irrespective of the nature thereof – owing to Actus’s instructions not having been or being adhered to.
11(8) Actus itself shall not be a party to any agreement(s) (to be) concluded between the principal of the one part and the principal’s providers of Internet and telecommunication services of the other part. Any and all costs incurred in connection with access to and use of the services to be supplied by the relevant providers are to be borne by the principal himself (itself).
11(9) Both the principal and Actus may at any time cancel the electronic service supply, with Actus being authorised at any time with immediate effect – without any liability for compensation restring with it – to modify, suspend or terminate its electronic service supply where it is of the opinion that it cannot reasonably be expected to carry on with said service supply, with the principal being under the obligation forthwith to return to Actus the full complement of security devices Actus had previously made available to it as soon as the electronic service supply has been discontinued.
11(10) The provisions as per the present article 11 shall apply mutatis mutandis to the relationship(s) between Actus and the third parties referred to in paragraph 4(1) above and/or between Actus and the other notarial practices referred to in paragraph 4(2) above, as well as to the relationship(s) between Actus of the one part and intermediaries (such as estate agents and mortgage advisers) of the other part.
 

Article 12: Assignment / Pledge

It shall not be possible for any claim vis-à-vis Actus or vis-à-vis any such individual or legal entity as referred to in article 2(2) above to be (or become) the object of assignment and/or pledge.
 

Article 13: Destruction of Old Files

It shall be permissible for Actus and for the civil-law notary concerned without further notification to remove from their archives and destroy physical files (if any) together with the full complement of records contained therein, including records belonging to or having been prepared by the principal or third parties, as soon as a ten (10) year term has expired since the date as at which the Actus operative in charge of the relevant file or the civil-law notary, as the case may have been, proceeded with the closure of same. It shall moreover be permissible for Actus exclusively to retain files and records in electronic format, in which case the ten (10) year retention term shall apply to the relevant digital records.
 

Article 14: Applicable Legal System

The juristic relationship between Actus of the one part and the principal or other third party of the other part shall be governed by as well as being subject to Netherlands law.
 

Article 15: Disputes

15(1) The complaints and dispute regulations for the notarial practice shall apply to Actus’s service supply, reference being made to www.knb.nl and www.degeschillencommissie.nl in this respect.
15(2) Any such disputes arising out of or being associated with:
(i) the work performed by or on behalf of Actus or assigned to Actus, and/or (ii) the juristic relationship with the principal or other third party,
as are not governed by the dispute regulations referred to in paragraph 15(1) above shall be subject to the exclusive jurisdiction of the competent court in Amsterdam and shall exclusively be adjudicated by the latter court, without prejudice to the right of appeal and appeal in cassation.
 

Article 16: Language

The present General Business Terms have been prepared in Dutch, in English and in Turkish. The Dutch version of these General Business Terms shall prevail in the event of there being a discrepancy or inconsistency, or a difference of interpretation, between the Dutch source text and the English translation thereof.
 
Done and signed in Heerhugowaard, the Netherlands on this sixteenth day of January two thousand and fifteen.
 
The present General Business Terms were filed with the Alkmaar District Court Registry on 1 april 2015 under number 28/2015.

 

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fotograaf: Rob Kluitenberg
 

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