GENERAL TERMS AND CONDITIONS OF NL REAL ESTATE B.V.
Effective October 2006
Article 1: APPLICABILITY
1.1 These General Terms and Conditions govern all assignments that are issued or accepted by NL real estate or one of its employees who is authorised to do so and who performs the work in question on behalf of NL real estate. These General Terms and Conditions form part of all agreements between NL real estate and the Principal.
1.2 Deviation from these General Terms and Conditions will be valid only if they are confirmed in writing by NL real estate. Insofar as no such deviations apply, the provisions contained in these General Terms and Conditions will continue to apply in full.
1.3 These General Terms and Conditions have been filed with the Clerk of the Court of Amsterdam in October 2006 and can also be obtained at www.NLrealestate.nl. These General Terms and Conditions have been drawn up in Dutch and in English. In the event of any dispute with regard to the content and purport of these General Terms and Conditions, only the Dutch text and its meaning within the jurisdiction of the Netherlands will be binding.
Article 2: DEFINITIONS
2.1 In these General Terms and Conditions, the terms listed below have the following meaning:
Assignment : a) an agreement pursuant to which NL real estate, either alone or together with one or more Contractors, undertakes towards one or more Principals, against payment of a commission, to engage in effecting agreements in respect of real estate in the broadest sense of the words and/or related rights between the Principal(s) and a third party or parties.
b) An agreement pursuant to which NL real estate, either alone or together with one or more Contractors, undertakes towards one or more Principals, against payment of a commission, to provide any other services that are directly or indirectly related to real estate in the broadest sense of the words.
NL real estate : NL real estate B.V., a private limited liability company, registered with the Chamber of Commerce under number 34253699, having its registered office in Amsterdam, the Netherlands, and companies that are affiliated with it in a group within the meaning of Article 2:24b of the Dutch Civil Code.
Principal : NL real estate's other contractual party in respect of an Assignment.
Commission : The commission to which NL real estate is entitled in connection with an Assignment.
Article 3: ASSIGNMENT
3.1 An Assignment is concluded when NL real estate has confirmed the content of the Assignment to the Principal in writing or when NL real estate commences work on an Assignment.
3.2 Changes to an Assignment can be implemented only by written confirmation by NL real estate.
3.3 Notwithstanding Article 7:404 and Article 7:407(2) of the Dutch Civil Code, all Assignments are accepted and performed exclusively by NL real estate, even if it is explicitly or tacitly intended that the Assignment will be performed by a particular person.
Article 4: TERM AND TERMINATION OF THE ASSIGNMENT
4.1 An Assignment can run for a fixed term or for an indefinite period of time.
4.2 An Assignment for an indefinite period of time ends by termination. Either party may terminate an Assignment by giving notice with due observance of a notice period of two months. Termination must be effected in writing.
4.3 An Assignment for a fixed term ends when the Assignment's term has lapsed or when the Assignment has been completed.
4.4 Notwithstanding the provisions contained in the foregoing paragraphs of this Article, either party is authorized to terminate the Assignment effectively immediately, by giving notice in writing, for weighty reasons including a breach by the other party in the performance of its obligations arising from the Assignment, a serious disturbance in the parties' relations, or if the other party is granted a suspension of payments or is declared bankrupt.
4.5 In the event that an Assignment ends due to termination within the meaning of Article 4.2, 4.3 or 4.4 of these General Terms and Conditions, because the Assignment has been completed or due to the expiry of the term for which the Assignment was entered into, the Principal will be obliged to pay NL real estate the Commission due. That Commission will be paid in accordance with the provisions contained in the Assignment confirmation and in Article 6 of these General Terms and Conditions; in addition, NL real estate will be reimbursed for the costs it incurred in performing or in connection with the Assignment.
Article 5: PERFORMANCE OF THE ASSIGNMENT
5.1 NL real estate will perform the Assignment properly and carefully and will represent the Principal's interests to the best of its knowledge and ability with due observance of the justified interests of the Principal.
5.2 During the term of the Assignment the Principal will refrain from performing activities that could hinder or impede NL real estate in the performance of the Assignment. The Principal will not conclude any agreements with respect to the Assignment without involving NL real estate and will not conduct any negotiations in that respect.
5.3 In performing the Assignment NL real estate may engage the services of other legal entities or natural persons, such as assistants. NL real estate will exercise due care when engaging third parties. In the legal relationship with the Principal, these General Terms and Conditions apply accordingly to the services provided or to be provided by that other legal entity or natural person on the instructions of NL real estate. If the liability of NL real estate is based on an error that is attributable to a third party or parties or an assistant engaged by NL real estate, the liability of NL real estate will be limited to the amount that NL real estate can recover and actually collect from the third party or parties or assistant in question. Upon receipt of that amount NL real estate will pay it to the Principal.
5.4 During the term of the Assignment the Principal will make available to NL real estate all relevant information necessary for the proper and speedy performance of the Assignment. In addition, the Principal is obliged to render every assistance to NL real estate. The Principal guarantees the correctness, completeness and reliability of the information provided to NL real estate, even if that information was received from third parties. The Principal is also obliged to provide NL real estate, of its own accord, with all information that the Principal knows or reasonably should know or could be necessary for the proper performance of the Assignment.
5.5 Unless the parties have made other written agreements, during the term of the Assignment the Principal is not permitted to give similar assignments to third parties in respect of the real estate to which the Assignment relates.
Article 6: COMMISSION AND COSTS
6.1 Unless the parties agree otherwise, the Commission and additional costs are exclusive of the turnover tax legally due.
6.2 NL real estate will lay down the amount of the Commission, or the bases for calculating the Commission if the Commission depends on the performance of the Assignment, in the Assignment confirmation.
6.3 If it is not possible to determine the Commission in accordance with the provisions contained in the Assignment confirmation, NL real estate will determine the Commission due from the Principal on the basis of generally accepted standards.
6.4 If the type and content of the agreement concluded differs from the Assignment and no further agreements have been made in advance in respect of the amount of the Commission, the Principal will owe a Commission calculated in the customary manner. If that is not possible the Principal will owe a Commission to be determined by NL real estate on the basis of generally accepted standards.
6.5 The Principal will owe NL real estate the advances and advertising costs due as well as all costs that NL real estate reasonable incurs for the benefit of the Principal in the performance of or in connection with the Assignment.
Article 7: PAYMENTS
7.1 Unless these General Terms and Conditions provide otherwise or the Principal and NL real estate have agreed otherwise, claims against the Principal for Commission due are payable if and as soon as the Assignment has been performed or ends for any other reason.
7.2 The Principal must make payment not later than 14 days after the invoice date, without any deduction, discount, settlement, suspension or withholding, in Dutch currency (EURO), by means of transfer to a bank account to be indicated by NL real estate .
7.3 If the Assignment has been given by more than one Principal jointly, each of them is jointly and severally liable for all of the obligations towards NL real estate arising from or in connection with the Assignment.
7.4 In the event that NL real estate is not paid in a timely manner, the Principal will be in default without any further demand or notice of default on the part of NL real estate being required.
7.5 In the event that the Principal is in default, the Principal will owe interest on the outstanding amount, equal to 2% per calendar month. A portion of a calendar month will be deemed a full calendar month. The Principal will also be obliged to reimburse the out-of-court and collection costs to be incurred by NL real estate, equal to at least 15% of the outstanding amount with a minimum amount of EUR 250.
7.6 Payments by the Principal will first serve to pay the collection costs due, will then serve to pay the interest due and will finally serve to pay the outstanding invoices.
Article 8: POWER OF ATTORNEY
8.1 The Assignment does not also comprise a duty or power of attorney to conclude agreements with one or more third parties in respect of real estate on behalf of the Principal or to perform any legal acts for the Principal's account.
8.2 Powers of attorney or mandates can be attached to the Assignment. If such powers of attorney or mandates are attached to an Assignment they will be valid only after they have been confirmed in writing by NL real estate.
Article 9: LIABILITY AND INDEMNIFICATION
9.1 Liability of NL real estate, and/or any legal entity or natural person engaged by NL real estate, for any damage that the Principal suffers during or in connection with the performance of the Assignment is excluded unless the damage was caused by an intentional act or gross negligence.
Any liability on the part of NL real estate is limited to the amount paid out under the professional liability insurance policy in respect of the event in question. If no payment is made under the aforementioned professional liability insurance for any reason whatsoever, the above-mentioned liability will be limited to the amount of the Commission that NL real estate charged or could have charged for the performance of the Assignment in question.
9.2 The Principal will indemnify NL real estate and/or legal entities or natural persons engaged by NL real estate against all liability of third parties, on any basis whatsoever, in connection with or arising from the Assignment.
Article 10: APPLICABLE LAW AND DISPUTES
10.1 The Agreement between the Principal and NL real estate is governed by Dutch law.
10.2 All disputes between the Principal and NL real estate arising from the agreements they conclude, including disputes relating to the Commission, costs and the fulfilment of the Principal's payment obligations towards NL real estate, will be submitted exclusively to the Court of Amsterdam, unless provisions of mandatory law provide otherwise.