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General Terms and Conditions of Notarispraktijk Johnson VBA
Article 1 - Parties
In these General Terms and Conditions, the following shall be meant by:
- Civil-law Notary: Theodore Reuben Johnson LLM, or any other civil-law notary employed with “Notarispraktijk Johnson VBA”, as well as the junior civil-law notary or notaries, lawyer or lawyers, other employees and associates employed with aforementioned office.
- Principal: the natural person or legal entity who has given the Civil-law Notary instructions in any way or has tacitly agreed to the confirmation of the instructions. In the event of establishment of a legal entity, the founder or each of the founders as well as the legal entity are jointly and severally considered to be the Principal. If a legal entity gives the instruction, the directors and shareholders are jointly and severally considered to be the Principal.
- Client: the party for whom the instruction is carried out.
Article 2 – Applicability General Terms and Conditions
All activities by “Notarispraktijk Johnson VBA” (also to be referred to as “Civil-law Notary” hereinafter) and the third parties (agents) engaged by it shall be performed based on a contract for services (also to be referred to as “the Instruction” hereinafter) between the Principal and “Notarispraktijk Johnson VBA”. These General Terms and Conditions apply to all contracts for services concluded between the Principal and “Notarispraktijk Johnson VBA”.
These General Terms and Conditions also apply to any additional or follow-up or new instructions of the Principal. Differences shall be agreed on in writing. If the Principal’s General Terms and Conditions are in conflict with these General Terms and Conditions, the General Terms and Conditions of “Notarispraktijk Johnson VBA” shall take precedence.
Article 3 - Instructions
- “Notarispraktijk Johnson VBA” considers the Instruction to be exclusively given to its office. This also applies if the Instruction is explicitly or tacitly meant to be carried out by a certain person. If Principal is mentioned hereinafter, this shall also mean the Client, unless the opposite explicitly appears.
The Instruction shall be considered to have been accepted:
- when the Civil-law Notary has confirmed the Instruction to the Client;
- when the Client takes receipt of a draft deed drawn up or personal advice issued on behalf of the Civil-law Notary on the Client’s request;
- when the Civil-law Notary receives a contract stipulating that the Civil-law Notary will execute one notarial deed or more notarial deeds, and begins to perform all activities to this effect.
- The effect of Article 404, Book 7, Civil Code, that provides for this, and the effect of Article 407, paragraph 2, Book 7, Civil Code, that creates joint and several liability in the case in which two or more persons have received instructions, are completely excluded.
- Instructions shall be carried out by the Civil-law Notary exclusively for the benefit of the Principal or Principals; third parties cannot derive any rights from this in any way. If an instruction is given by another party than the Client, the Civil-law Notary has the right to request a confirmation of the instruction from the Client.
- The Principal shall give the Civil-law Notary all information necessary to carry out the instruction, shall vouch for the accuracy, completeness, and reliability of the information provided, and shall promptly notify the Civil-law Notary of any change in that information. The Civil-law notary has the right to suspend carrying out the instruction until the Principal has met the obligation mentioned in the previous sentence. If the Civil-law Notary suffers loss or has to incur extra costs because the Principal provides inaccurate, incomplete, or unreliable information, the ensuing additional costs and loss, if any, shall be charged to the Principal.
- If an Instruction is given by more than one person, each of these persons shall be jointly and severally liable for the amounts owed to the Civil-law Notary on account of this Instruction. If an Instruction is given by a natural person on behalf of a legal entity and if this natural person can be considered to be the (co-) policymaker of this legal entity, this natural person shall be the Principal also in his private capacity.
- Activities that are performed without ultimately leading to a notarial deed shall also fall under the definition of carrying out an Instruction.
- By giving the Instruction, the Client agrees to these General Terms and Conditions.
Article 4 - Liability
- Any liability of the Civil-law Notary shall be limited to the amount or amounts covered by the professional liability insurance taken out by the Civil-law Notary in the relevant case, plus the Civil-law Notary’s deductible under that liability insurance. If, while an Instruction is carried out, a situation presents itself in which the Civil-law Notary is not entitled to payment under the professional liability insurance taken out, and it is nevertheless established in court that the Civil-law Notary is liable, this liability shall be limited to an amount not exceeding three times the notarial fee that has been charged by the Civil-law Notary for the relevant service. Any liability for indirect, consequential, and/or trading loss shall be excluded.
- The limitation of liability described in paragraph 1 shall also apply if the Civil-law Notary is liable for or on account of improper functioning of the equipment, software, data files, registers or other items used by the Civil-law Notary when carrying out the Instruction, none excluded.
- The limitation of liability as described in paragraph 1 of this Article shall also apply if the Civil-law Notary has wrongly refused his services and this has led to loss.
- The limitation of liability as mentioned in paragraph 4.1 has also been introduced for the benefit of the substitute of the Civil-law Notary and all the employees of “Notarispraktijk Johnson VBA”, so that they can equally rely on this limitation of liability.
- The Civil-law Notary shall not be liable for shortcomings of third parties involved. The Civil-law Notary is deemed to have been authorized by the Client to accept limitations of liability of third parties, if any, on behalf of the Client.
- The limitation of liability as mentioned in paragraph 4.1 shall also apply if the Instruction is not carried out in time or an omission occurs while the Instruction is carried out.
- Any right to compensation shall in any event have lapsed twelve months after the event the liability directly or indirectly ensues from. This does not exclude the provisions in Article 6:89 Civil Code.
Article 5 - Costs
- The costs shall consist of the fee to be charged by the Civil-law Notary in conformity with the list of notarial fees laid down by the Joint Court of Justice of Aruba, Curaçao, St. Maarten, and of Bonaire, Statia, and Saba, any other arrangements made, disbursements, and office expenses, plus legally due business turnover tax (“BBO”), tax earmarked for the National Health Insurance (“BAZV”), any other legally due taxes, and costs of third parties to be paid by the Principal through the Civil-law Notary, including, but not exclusively, the Land Registry and the Tax Department. If activities are carried out that have not been included in aforementioned list of notarial fees, the Civil-law Notary shall apply this list of notarial fees as much as possible by analogy to the relevant activities with regard to the applicable fee.
- At all times, the Civil-law Notary has the right, either when accepting the Instruction or while carrying out the Instruction, to require payment of an advance on the fee, plus disbursements and office expenses, from the Client, and the Civil-law Notary has the right to suspend further services if the Client fails to comply with this requirement.
In the event of continuous instructions, such as settling an estate, the Civil-law Notary is authorized to charge afterwards on a monthly basis for the activities performed and costs incurred.
- The Principal shall pay the invoices presented to him for carrying out the Instruction. Furthermore, the Principal shall pay all extra costs paid by the Civil-law Notary in the context of carrying out the Instruction, such as travel expenses, costs of express mail, courier costs, court fees, appraisal costs, translation costs, Land Registry charges, fees, registration costs, title search fees, and bank costs, as well as taxes that may be legally due in respect of the extra costs. This list does not exclude any other necessary costs or disbursements that have not been mentioned.
- If an Instruction is cancelled, the Principal shall owe an amount at least equal to two-thirds (2/3) of the fees in conformity with the list of notarial fees laid down by the Joint Court of Justice of Aruba, Curaçao, St. Maarten, and of Bonaire, Statia, and Saba or the amount agreed on, as well as the additional costs incurred by the Civil-law Notary. If the draft of the relevant notarial deed has already been drawn up at the time of cancellation, the Principal shall owe the entire amount in conformity with aforementioned list of notarial fees and/or the arrangement made.
- If the Principal postpones a planned appointment within one week before the date of the appointment and this requires extra work, the Civil-law Notary reserves the right to charge the Principal additional costs for this purpose.
- If the Instruction has been given by several entities, each of them shall be jointly and severally liable for payment of the invoice issued by the Civil-law Notary.
- If the Principal is another party than the Client, both shall be jointly and severally liable for payment of the invoice.
Article 6 – Timely payment invoice(s)
- The final amount of the invoice for the realization of a notarial deed must always have been credited to the bank account of the Civil-law Notary (clients’ account) before or on the date of the signing hereof; an instruction to or confirmation hereof by the Principal’s bank shall not suffice for this purpose.
- Any other invoice presented to the Principal by the Civil-law Notary must have been credited to the bank account of the Civil-law Notary (clients’ account) before or on the date mentioned in the invoice. If such a date has not been mentioned, the invoice must have been credited to the bank account of the Civil-law Notary (client account) within 14 days after the date of the invoice.
- If the Client has not mentioned any objections to the Civil-law Notary within four weeks after he has been able to take note of the invoice, he is deemed to agree to the invoice.
- If the invoice is not paid in time, the Principal shall be in default without any demand or notice of default being required, and the Principal shall owe 1.5% interest per month -while part of a month shall be considered to be a full month- from the date on which the amount not paid in time should have been credited to the bank account of the Civil-law Notary until the date of the actual credit entry, as well as extrajudicial collection costs pursuant to Article 6:96, paragraph 2, subparagraph c, Civil Code Aruba, estimated at 15% of the outstanding amount of the invoice. In that case, the outstanding amount shall be increased by these costs. Furthermore, the Civil-law Notary has the right to suspend the activities until the payment of the outstanding invoice or invoices. The Civil-law Notary shall not be liable for loss caused by this.
All this without prejudice to the other rights the Civil-law Notary can exercise in this respect.
The Civil-law Notary has the right to set off the funds received for the benefit of the Client against the fees, disbursements, and outstanding invoices the Client owes.
- The Principal shall pay any costs arisen on account of judicial or extrajudicial collection of the Civil-law Notary’s claim.
Article 7 - Filing
- After the Instruction has been carried out, the Civil-law Notary shall retain the file for at least 10 years. Subsequently, the Civil-law Notary is at liberty to destroy the file. In the event of any disputes after the 10-year period has expired, the Principal shall have the burden of proof.
- The notarial deeds shall be retained in the manner and for the duration as determined by the Civil-law Notaries Ordinance.
Article 8 - National Ordinance on prevention and suppression of money laundering and financing of terrorism
Inter alia the National Ordinance on prevention and suppression of money laundering and financing of terrorism (Official Bulletin 2011 No. 28) applies to the Civil-law Notary’s services.
The Civil-law Notary has the following obligations:
- a client screening shall take place to establish the Client’s identity;
- the Civil-law Notary shall promptly report any unusual transaction or incident to the competent authorities without the knowledge of the parties involved.
Article 9 - Payment
A claim on the Civil-law Notary on account of the payment of money based on the legal act mentioned in a deed cannot be assigned or pledged. The Civil-law Notary shall only pay money to the party to the deed and/or the party that can claim payment based on the legal act mentioned in the deed.
Article 10 – Applicable law
Aruban law governs the legal relationship that these General Terms and Conditions apply to. Disputes shall be settled exclusively by the Aruban court.
These General Terms and Conditions were filed with the Registry of the Court of First Instance of Aruba on March 28, 2017, and replace the General Terms and Conditions that “Notarispraktijk Johnson VBA” filed with the Court earlier.