Ordinary terms and conditions
December 2023
Terms of Business for Ecomentors Services
1. Introduction
1.1. These terms of business apply to the assurance, consulting and other assistance services that Ecomentor, State Authorised Public Accountants, (CVR-nr. 26 06 32 21) (”ECO”) provides to its client (the “Client”).
1.2. The engagement letter together with any appendices (the “Engagement Letter”) and these terms of business constitute the agreement between ECO and the Client (the ”Agreement”). In case of any discrepancy between the Engagement Letter and these terms of business, the terms of the Engagement Letter will take precedence.
1.3. ECO is a member of the AGN Global Network (”ECO Network”), the members of which share name, values, knowledge and expertise. Each member is an independent legal entity, which is locally owned and operated.
2. ECO’s services
2.1. ECO’s services, including digital and physical services, (the ”Service(s)”) are described in the Engagement Letter and include any ancillary services agreed by ECO and the Client.
2.2. The Services may take the form of stand-alone or ongoing services.
2.3. Physical services, such as reports, presentations, memoranda, etc., which ECO is to provide to the Client (the “Deliverables”) are described in the Engagement Letter.
Additional provisions applicable to consulting and assistance services
2.4. The Services and the Deliverables may only be used by the Client and only for the purpose agreed, or mutually intended, by ECO and the Client.
3. Staffing, subcontractors etc.
3.1. If it has been specifically agreed which partners and employees are to provide the Services, a provision to this effect has been included in the Engagement Letter. ECO is entitled to replace such partners and employees if necessitated by the prevailing circumstances. Such replacement must be communicated to the Client at the earliest opportunity and is not to entail any additional costs for the Client.
3.2. Subject to the Client’s consent, ECO is entitled to engage subcontractors in connection with the provision of the Services. However, ECO is entitled to engage foreign ECO firms as subcontractors (collectively the “Subcontractors”) without the Client’s consent.
3.3. ECO is liable to the Client for services provided by the Subcontractors to the extent such services constitute part of the Services to be provided pursuant to the Engagement Letter. The Subcontractors act solely on behalf of ECO and on ECO’s instructions.
3.4. The Client may bring a claim against ECO, but not against ECO’s partners and employees or the Sub- contractors and the Subcontractors’ partners and employees in relation to the Services and the Agreement. ECO’s partners, employees and the Subcontractors and the Subcontractors’ partners and employees may rely on this provision against the Client.
3.5 ECO does not provide employees on a Try & Hire basis. If the Client nonetheless wishes to hire or engage ECO’s employees for employment or any other tasks, the Client is obligated to contact ECO for a discussion before initiating any dialogue with the respective employee.
3.6 Should the Client, within the agreement period and within 12 months after the expiration of this Agreement, offer employment or engage the mentioned employee in any other tasks, this will trigger a standard recruitment fee to ECO of DKK 500,000.00. Regardless of the employee’s eventual hiring, the Client is obligated to pay a fee corresponding to the agreed-upon number of hours for the remaining duration of the Agreement.
4. Client assistance and obligations
4.1. The Client will provide ECO with all the information, assistance etc. necessary for ECO to provide the Services.
4.2. If any of the Client’s policies apply to the purchase of services from ECO, the Client is responsible for obtaining the pre-approval required.
4.3. If, in connection with the performance of the Agreement, ECO’s (or the Subcontractors’) partners or employees work at the Client’s address or another location assigned by the Client, the Client guarantees that workplace conditions, ECO’s (or the Subcontractors’) access to and use of systems (including software and data), etc. are not contrary to law, agreements and third-party rights.
4.4. The Client will execute all management functions and make all managerial decisions in connection with the Services, including decisions about reporting to public authorities.
Additional provisions applicable to assurance services
4.5. If so requested by ECO, the Client will instruct any subsidiaries in countries outside the EU/EEA to allow their auditors to release to ECO documentation of the audit performed, unless this is contrary to local legislation etc. The Client acknowledges that ECO is obliged on request to release such documentation to relevant Danish regulatory authorities.
Additional provisions applicable to consulting and assistance services
4.6. ECO will not review or verify that the information, materials etc. provided by the Client and the Client’s advisers and suppliers are correct, accurate and complete. In providing the Services, ECO will rely on such information, materials etc. being correct, accurate and complete.
5. Fees and invoicing
5.1. Fees for the Services are fixed as described in the Engagement Letter. VAT is not included in the fees unless stated in the Engagement Letter.
5.2. If the Engagement Letter does not specifically state ECO’s fees or how the fees are fixed, the fees will be based on time spent, including on transportation/travel, and on the hourly rates applicable for the partners and employees who have provided the Services. ECO may adjust hourly rates once a year.
5.3. In addition to the fees mentioned in clause 5.1 above, ECO will invoice all costs and disbursements incurred in connection with the provision of the Services, including those incurred for the Sub- contractors, transportation, accommodation, food, materials, courier services, etc.
5.4. In connection with ECO’s performance of the Agreement, ECO may invoice the Client on an on- going basis unless otherwise agreed. ECO reserves the right to invoice on account. Invoices are payable no later than 14 days after the invoice date. In case of late payment, ECO may charge interest in accordance with the Danish Interest Act.
5.5. ECO may forward invoices electronically, unless otherwise agreed. In the Engagement Letter, the Client must inform ECO of the e-mail address to which ECO should electronically forward invoices and statements of account.
5.6. ECO is entitled to suspend further work until overdue amounts, including late fees, are settled. Similarly, in the event of a reasonable suspicion of the Client’s inability to pay, ECO may suspend further work until satisfactory security is provided or documentation of timely payment of non-due fees is presented.
6. Termination of the Agreement
6.1. The Agreement terminates with no further notice on delivery of the Services agreed in the Engagement Letter.
6.2. ECO and the Client may terminate the Agreement at any time by giving the other party eight days’ written notice unless otherwise agreed.
6.3. The Agreement may, however, be terminated by ECO without any prior notice where a situation arises implying that all or some of ECO’s Services are contrary to its independence rules or any other rules or standards by which ECO is governed.
6.4. If the Agreement is terminated prior to its agreed expiry, ECO will be entitled to all fees and reimbursement of costs for the period up to termination as well as to reimbursement of its costs as a result of the early termination, including costs relating to the Subcontractors etc., cf. clause 5.3.
6.5. Provisions set out in the Agreement which either explicitly or by virtue of their nature extend beyond the date of expiry will remain in force after this date.
6.6 ECO may terminate the Agreement with or without notice if the Client ceases its payments, undergoes reconstruction proceedings, declares bankruptcy, or becomes otherwise financially insolvent.
7. Confidentiality etc.
7.1. ECO and the Client will keep all information concerning the affairs of the other party confidential, in so far as such information is confidential by nature.
7.2. ECO’s internal procedures ensure protection of the Client’s confidential information obtained by ECO in connection with the Agreement. ECO’s partners, employees and the Subcontractors are subject to a duty of confidentiality.
7.3. ECO may disclose confidential information to the Subcontractors, to the extent such disclosure is necessary for the provision of the Services.
7.4. The duty of confidentiality is subject to rules which impose a duty of disclosure to the ECO Network, supervisory authorities on auditing or other public authorities. Thus, ECO may disclose confidential information to the extent it is required (1) in connection with quality assurance and -control, (2) under present law or (3) by a competent court. Disclosure will be made only to the extent necessary to perform quality assurance and -control, to comply with present law or a given ruling.
7.5. Subject to its duty of confidentiality, cf. clause 7, ECO may inform any third party of its engagement with the Client.
Additional provisions applicable to assurance services
7.6. The Client consents to ECO exchanging information with foreign-based audit firms to be used by these firms in providing services to the Client’s affiliates.
Additional provisions applicable to consulting and assistance services
7.7. The Client shall treat the Services (irrespective of form of delivery) as confidential and may not dis- tribute or disclose the Services to any third party without ECO’s prior written consent.
The Client’s advisers, the names of whom are communicated in writing to ECO, may, however, be granted access to the Services without ECO’s specific consent, provided that the Client ensures that its advisers (1) are subject to a duty of confidentiality, (2) have been informed that ECO does not assume any liability to the Client’s advisers, and (3) that the Services are not to be used for any other purpose than the purpose agreed, or mutually intended, by ECO and the Client.
The Client is liable to ECO for any violation of this clause 7.7 by its advisers.
8. Limitation of liability
8.1. ECO will be liable to the Client for the Services under the general rules of Danish law with the limitations and exemptions set out in the Agreement.
8.2. ECO is not liable for any loss attributable to the materials etc. provided by the Client being incorrect, inaccurate or incomplete, cf. clause 4.
8.3. ECO is not liable for any indirect loss or consequential loss, including loss of earnings, time, profit, data, goodwill, reputation, etc.
8.4. ECO will not be liable to any third party gaining access to the Services and/or the Deliverables. The Client undertakes to indemnify ECO, ECO’s employees and partners in respect of any claim made by a third party against ECO in relation to any loss, costs incurred, etc., resulting from the Client’s breach of the Agreement, including clause 7.7.
8.5. Digital services will be made available as is to the Client in the term of the Agreement. ECO does not warrant that the digital services will be free from errors or defects or that the execution thereof and access thereto will be uninterrupted and error free.
8.6. ECO does not assume any liability or responsibility for any loss as a result of the Client’s actions or omissions based on the content of the digital services.
Additional provisions applicable to consulting and assistance services
8.7. ECO’s liability is limited to an amount corresponding to five times ECO’s fees (excluding VAT) for stand-alone services and five times ECO’s fees (excluding VAT) paid by the Client to ECO for ongoing services in the six-month period leading up to the event giving rise to the claim.
8.8. In respect of digital services, ECO’s liability is limited to the fee (excluding VAT) paid by the Client to ECO for the digital services in the 12-month period leading up to the event giving rise to the claim.
9. Intellectual property rights
9.1. ECO and the Client each retain ownership of all intellectual property (“IP”) rights in existence prior to the conclusion of the Agreement. No party obtains ownership of the other party’s pre-existing IP rights.
9.2. Upon the Client’s full and final payment to ECO, the Client retains ownership of the IP rights in the Deliverables. To the extent the Deliverables comprise ECO’s pre-existing IP rights, the Client has a non-exclusive and non-transferable user right thereto. This clause 9.2 does not apply to digital services.
9.3. ECO retains ownership of all other IP rights, products, materials, etc. prepared in connection with or arising from the performance of the Agreement.
10. Personal data
10.1. Where ECO under the Agreement processes data subject to the Danish Act on Processing of Person-al Data, ECO acts as data processor within the meaning of the Act and only as instructed by the Client which is the data controller.
10.2. Section 41(3)-(5) of the Danish Act on Processing of Personal Data also apply to the processing by ECO.
10.3. In providing the Services, ECO may engage sub-processors based within and outside the EU/EEA.
10.4. If the Client has group relations with foreign enterprises, the Client consents to ECO passing on information on client affairs, the Services provided, fees received, staffing, etc. to the ECO Net- work, within and outside the EU/EEA, for the purpose of delivery of the Services, statistics, business development and optimisation within the ECO Network.
10.5. The Client is responsible for the provision of in- formation to ECO and the Subcontractors, including sub-processors, complying with applicable rules on the processing of personal data.
11. Electronic communication etc.
11.1. ECO and the Client accept the use of electronic communication (including but not limited to e-mail, portal solutions and other medium) and the risks related thereto. Each party is responsible for protecting its own systems and interests in connection with electronic communication.
11.2. ECO and the Subcontractors are not liable for any error, loss, virus, delay, destruction, etc. arising out of, or caused by, electronic communication and information.
12. Governing law and jurisdiction
12.1. The Agreement is governed by the laws of Den- mark without giving effect to the rules relating to conflict of laws. Any dispute arising out of this Agreement and the Services may solely be brought before a Danish court.