Del I General part
1 INTRODUCTION AND DEFINITIONS
1.1 "BDO", "we" or "us" mean, in this context, BDO AS (organisation number 993 606 650) and BDO Advokater AS (organisation number 996 798 577).
The "BDO network" means the global network of separate and independent companies designated as BDO.
1.2 Our services and any additional terms and conditions will be governed by an Engagement Letter or Engagement Agreement. Engagement Letters and Engagement Agreements are referred to in these terms and conditions as an "Engagement Agreement".
1.3 Delivery of our services is governed by these terms and conditions ("The Terms and Conditions") and the Engagement Agreement. If there is a conflict between the Terms and Conditions and the Engagement Agreement, the provisions of the Engagement Agreement will take precedence.
1.4 The specific terms and conditions for the respective services in Part II of the Terms and Conditions are an integral part of, and supplement to, the General Part I of the Terms and Conditions. In the event of conflict between the General Part I of the Terms and Conditions and special terms and conditions for the various services, the special terms and conditions will take precedence.
1.5 The "Client" is the party to whom BDO has sent an Engagement Agreement and who has entered into an agreement for the services.
1.6 Person responsible for the Engagement means the person indicated in Sections 2.3 and/or 2.4.
2 SERVICES PROVIDED BY BDO
2.1 We provide audit, assurance, business, advisory and legal services. Advisory is an independent service. Advisory services may be rendered as part of our audit, assurance, business and legal services. However, no agreement to provide independent advisory services can be construed, unless agreed in a separate Engagement Agreement.
2.2 The scope of the specific Engagement or service shall be specified by us and the Client in the Engagement Agreement. However, the scope of service might be changed, expanded or revised during the course of the Engagement on the basis of instructions from the Client, how the Engagement evolves, or other external circumstances, etc. If the parties wish to make substantial changes to the scope of services stated in the Engagement Agreement, a new Engagement Agreement will be prepared, or the changes shall be agreed in writing in another manner. If the Engagement changes with respect to the scope of services, we are entitled to adjust the fees according to the prices applicable at that time.
2.3 The services we provide are only intended for the purpose laid down in the Engagement Agreement or subsequent agreements between us and the Client.
2.4 We will always specify a person in the Engagement Agreement who is responsible for the delivery of the service. We reserve the right to change our service team. For legal services, a legal counsel will be appointed as the responsible for the legal services provided under the Engagement.
3 CLIENT'S OBLIGATIONS
3.1 The Client is required to make available to us all information, documentation, and resources necessary to execute the Engagement. This applies irrespectively of whether we have assisted the Client in previous Engagements and thus, already possess information about the Client.
3.2 The Client is required to on a continuous basis, keep us informed about matters and/or any changes in conditions that may affect the execution of the Engagement.
3.3 The Client may not hand over or allow others to gain access to or our service delivery, unless this a) has been specifically agreed in the Engagement Agreement or other agreement documentation between the Client and us, b) is required by statute or regulation or c) occurs with our prior written consent. The same applies to any knowledge gained by the Client through the delivery of our services regarding our ideas, concepts, models, information, know-how, methodology, etc.
3.4 Unless otherwise specifically agreed, stipulated in the specific terms and conditions for the respective services in the other parts of these Terms and Conditions or stipulated in a statute or regulation, the delivery of our services (including any reports) is only intended for internal use by the Client and for the purpose stated in the Engagement Agreement for the Engagement in question. We will not assume any liability whatsoever for third-party use of services provided and reports intended for the Client. Any liability and all expenses resulting from any claim from a third party, including as a result of unauthorised external use of reports or other deliverables, shall rest entirely with the Client.
If reports, letters, information or advice provided by BDO to the Client are to be used by a third party, we reserve the right to enter into a separate agreement with the Client about this or to require that the third party enters into an agreement with BDO. Unless otherwise agreed in writing, BDO has no liability beyond what already applied at the time of our advice or report.
The Client may not obligate us to provide our advice or reports to a third party without our written consent. Any such consent will be subject to terms and conditions (which normally will be agreed with the Client and/or the third party), including assignment of liability for damages.
3.5 The Client shall indemnify us for any and all losses, damages or costs incurred as a result of the Client's breach of its obligations in Section . We will not be liable for damages incurred as a result of the Client's failure to comply with the Client's obligations.
3.6 Where use of IT systems is part of the services we provide, either directly or through third-party suppliers, the Client shall accept the applicable terms and conditions for the system(s) in question.
4.1 The Client is entitled to freely use documents and materials the Client has specifically paid to have developed, with the limitations provided for in these Terms and Conditions, the Engagement Agreement and any other agreement documents involving the parties. However, we will retain the copyright and all other intellectual property rights to materials handed over to the Client, as well as rights to materials, software, ideas, concepts, models, information, know-how and such which results from or developed in connection with the services.
5 FEES AND PAYMENT OBLIGATIONS
5.1 The terms and conditions in Chapter 5 apply unless otherwise described in the Engagement Agreement, the specific terms and conditions for the respective services, or in other parts of these Terms and Conditions, cf. Sections 1.3 and 1.4 in these Terms and Conditions.
5.2 The agreed fees and costs are stated in the Engagement Agreement. Unless otherwise stated, fees are always specified exclusive of VAT. To cover costs related to various IT tools and administrative tasks performed by personnel other than those dedicated to the Engagement, an administrative charge of 3 per cent of the accrued hourly fees will be applied. This will include time spent on registering the client relationship and preparation and confirmation of the Engagement.
5.3 When invoicing, we reserve the right to make an overall assessment with respect to the amount, where specific expertise, experience, risk and other matters concerning the Engagement will be taken into account. We reserve the right to invoice in advance or on account when appropriate. The Client consents to our offsetting of fees due against such paid amounts.
5.4 VAT will be calculated in addition to net fees in accordance with the applicable regulations at any time. To the extent government authorities impose VAT on any of the services after an invoice is issued to the Client, we are entitled to invoice the Client in arrears for such output VAT. The limitation period on unpaid VAT begins at the date of the resolution made by the tax authorities to re-calculate such output VAT.
5.5 All expenses and outlays such as travel time, travel costs, accommodation, etc. will be invoiced with the fees. In addition to fees and outlays/expenses, any VAT will be added according to the rules applicable at any time. Passing on outlays may result in separate value-added tax on the outlays.
5.6 To the extent we use subcontractors, this will be invoiced according to applicable rates, plus VAT if applicable.
5.7 We normally invoice work performed each calendar month, irrespective of whether the Engagement has been concluded. If the Client has particular preferences related to how the work is to be invoiced, the Person responsible for the engagement at BDO must be informed of this before the Engagement is commenced, so that we can decide whether we are able to fulfil such requests. The deadline for payment is 14 days from the invoice date, unless otherwise agreed between the parties. Penalty interest will accrue according to the applicable statutory rate for penalty interest for amounts that are not paid when due.
5.8 Any objections to invoices must be presented immediately and, in all cases, within 60 days after the payment deadline for the invoice.
5.9 The Client is not entitled to offset our remuneration with claims the Client has, or asserts to have, against us.
5.10 If the Engagement is terminated, irrespective of the reason for the termination, the Client shall pay a fee for work performed plus expenses and outlays up until the Engagement is terminated.
5.11 If not otherwise agreed, client-specific fees will be adjusted annually according to the Norway Consumer Price Index for services where labour predominates, with effect from 1 January.
6 ELECTRONIC COMMUNICATION
6.1 We employ electronic means of communication when communicating with the Client and third parties. Separate terms and conditions apply for our communications channels. There will always be a certain security risk in connection with electronic communication. The parties are individually responsible for ensuring that common precautions are taken during electronic information exchanges, including installation and updating of adequate software for virus protection etc.
6.2 Our spam and virus filters and security arrangements may occasionally reject or filter out legitimate e-mails. The Client should, therefore, follow up important e-mails by telephone if a response has not been received within a reasonable period. We will not have liability if our filter programmes should turn out to be insufficiently effective and the Client's systems should be infected by a virus or in another way be negatively affected because of an e-mail from us.
7.1 We and the Client commit to use the other party's confidential information only in connection with performance of the service in question and will not allow others to gain access to it, except in cases where it is required by statute or regulation. However, we can provide confidential information to others in the BDO network, BDO Advokater AS or relevant subcontractors and/or the Client's advisers involved in the matter, as long as they have a justifiable need for the information and are bound by a duty of confidentiality.
7.2 BDO AS is subject to supervision and professional quality control by the Norwegian Financial Supervisory Authority, BDO Global and institutes or organisations where we are members. The Client will provide BDO AS and the above-mentioned supervisory authorities or regulatory bodies access to relevant materials and full access to physical and electronic archives which document the work of BDO AS, including necessary access to the IT systems, as a part of such supervision or control.
7.3 We may refer to the Client and the services we have assisted the Client within connection with the marketing of our services.
8 CONFLICT OF INTEREST
8.1 The Client consents to us performing services for the Client's competitors and for others who may have a conflict of interest with the Client.
8.2 We also refer to the specific rules on conflict of interest that apply to certain services provided, described in greater detail in Part II.
9.1 As a part of the performance of our services we will process personal data. We will process such personal data as either a data controller or a data processor. Unless otherwise specified in these Terms and Conditions, in the Engagement Agreement or otherwise agreed with the Client, we process personal data as a data controller. More information about how we process personal data as a data controller can be found on our website.
9.2 Our data processor agreement applies to our processing of personal data as a data processor, unless otherwise agreed with the Client. In the event of any conflict between the data processor agreement, these Terms and Conditions and/or the Engagement Agreement, the data processor agreement will take precedence for matters specifically related to data processing.
10 ANTI MONEY LAUNDERING AND FINANCING OF TERRORISM
10.1 We are subject to statutes and regulations regarding measures against money laundering and financing of terrorism. We may therefore ask the Client to provide the information we need to perform necessary checks and client due diligence measures. If we do not receive the necessary information, we may be prevented from accepting the Engagement.
10.2 The Client undertakes, upon request from us, to provide complete and correct information for conducting checks and client due diligence measures.
10.3 The Client undertakes, upon request from us, to provide complete and correct information for conducting our anti money laundering control and measures.
11 USE OF DATA
11.1 In addition to using data as part of the delivery of our services, the Client acknowledges that we may use such data, including personal data, for (i) development and testing, statistics, research, knowledge administration and (ii) archiving, invoicing, administration and other internal business purposes.
11.2 The Client accepts that we may extract data from the Client's accounting system and other systems to which the Client provides us access, to the extent appropriate for performing our service delivery. Such data may also be used as mentioned in Section 11.1.
11.3 Clients who wish to make a reservation against the use of data as mentioned in Sections 11.1 (i) and 11.2 can do so on our website.
11.4 We may send newsletters, event invitations and other enquiries to appropriate individuals at the Client, by e-mail or SMS. Individuals will be given an opportunity to unsubscribe from this. We will also be able to send such enquiries based on an individual's consent.
11.5 BDO has guidelines for ethical use of data and procedures for use of sensitive information and personal data. See also paragraph 7 on Confidentiality and paragraph 9 on Privacy regarding restrictions on the use of data.
11.6 If the services we provide include delivery of a data model, this requires that the principles being basis for the model have been discussed in a meeting between us and the Client. The Client makes the final decision on the principles being basis for the data model.
We do not know what future decisions the Client may take based on the model and all use is, therefore, at the Client's expense and risk. Accordingly, we assume no liability for the result of decisions based on the use of the data model.
12 TRANSFER OF THE AGREEMENT
12.1 Without the other party's prior written consent, neither party may assign, transfer or delegate its rights, obligations, claims or payment of claims arising from this agreement. Any transfer without such consent is invalid. The requirement for prior consent also applies to a corporate merger or demerger.
13 FORCE MAJEURE
13.1 Neither of the parties is liable to the other for damages are a result of a party being unable to fulfil its obligations because of circumstances that the party did not know about or could not reasonably have known about when entering into the Engagement Agreement, and neither the condition nor the consequences could have reasonably been avoided or resolved by the other party.
14 EMPLOYEE ACCESS TO CLIENT'S BANK ACCOUNT
14.1 No employee of BDO will have private access to the Client's bank accounts. Any bank access will be administered through BDO's access agreements with appropriate banks as authorised by the Client.
15 LIMITATION OF LIABILITY
15.1 We are not liable in any way for indirect losses, consequential losses or consequential damage, including operating loss, lost profit, lost goodwill, etc.
15.2 Unless otherwise provided for by law, no partner, board member or employee of ours will have any personal liability in connection with Engagements that are accepted or work that is performed by us.
15.3 We are not liable for advice and/or information provided by anyone other than our own employees, even if we have arranged contact with external advisers, unless this is specifically agreed. If we use other member firms in the BDO network outside Norway as a subcontractor, in the event of a breach caused by the subcontractor, the Client may only make a claim against BDO in Norway and as provided in the Terms and Conditions.
15.4 Unless otherwise stated in the Engagement Agreement, we are not liable for information provided by the Client in statements to government authorities, including tax statements and appendices, cost reimbursements, subsidies, shareholder register statements, tax reductions, etc.
15.5 Unless otherwise agreed in the Engagement Agreement, the maximum liability for damages for BDO, including any liability for the person responsible for the Engagement where that individual is personally liable for the Engagement, will be the higher of 10 times the accrued fee (including VAT) for the service claimed to have been deficient or NOK 1 million, limited to a maximum of NOK 50 million.
15.6 These provisions on limitation of liability apply to the extent that they do not conflict with mandatory legislation.
16 TERMINATION OF THE AGREEMENT
16.1 The Client may terminate the agreement with 30 days' written notice, if not otherwise stated in the Engagement Agreement or any specific terms and conditions in Part II below for the service(s) in question. If it does not breach relevant professional requirements, and nothing to the contrary is stated in Part II or the Engagement Agreement, we may also terminate the agreement with 30 days' written notice.
16.2 Unless otherwise stated in provisions governing specific terms and conditions for the respective services, the contractual relationship may be terminated with immediate effect by a party if (i) the other party materially breaches the agreement and does not rectify the breach within 7 days after being made aware of the breach, (ii) it is likely, or appears likely, that the other party is unable to pay its obligations or becomes insolvent or (iii) the agreement, or actions arising from it (including any form of settlement), may or might entail a violation of any statute or regulation.
17 COMPLAINTS AND DISPUTE RESOLUTION
17.1 Any complaint regarding the performance of the Engagement is to be directed to the individual at BDO identified in the Engagement Agreement as the person responsible for the Engagement or the Managing Partner and to [email protected] The complaint rules stated in the specific terms and conditions for the service type in question in Part II below, also apply.
17.2 The agreement, and any disagreement related to the agreement, either contractual or non-contractual, are governed by Norwegian law. The Parties shall attempt to resolve any disputes in connection with the delivery of our services, contractual and non-contractual, through negotiations. If such negotiations do not succeed within two weeks from when the dispute arose, each of the parties may request to have the dispute determined by the general courts in Norway. BDO is entitled to decide that legal proceedings must be brought to the Oslo District Court, irrespective of whether BDO is the plaintiff or defendant.
18 CHANGES TO AGREEMENT
18.1 We are entitled to make changes to these Terms and Conditions with effect for new Engagements or upon renewal of an Engagement agreement. The current version of the Terms and Conditions will be available at all times on our website, www.bdo.no. Any changes will enter into force with effect from the dated on which the changed version has been published on our website. Previous versions may be obtained upon request.