General Terms and Conditions. Vastgoedhypotheker B.V.

Transcription

1 General Terms and Conditions Vastgoedhypotheker B.V. Article 1 - General In these General Terms and Conditions will be understood under: Principal: The party that gives commission. Contractor: Vastgoedhypotheker B.V. Article 2 - Applicability 1. These General Terms and Conditions are applicable to all legal relations between Contractor and Principal, except for deviations of these terms and conditions which must have been confirmed by Contractor explicitly and in writing. 2. If any stipulation, forming part of these General Terms and Conditions or of the agreement concluded between Principal and Contractor would be invalid or will be invalidated, then the agreement remains otherwise intact and the concerned stipulation, in consultation between parties, shall be replaced without delay by a stipulation that approaches the tenor of the original stipulation as much as possible. Article 3 - Conclusion of the agreement 1. The agreement is concluded on the moment that the designated offer, cooperation agreement or confirmation of commission signed for approval by Contractor and Principal, has been received back by Contractor retour, or; on the moment that the Contractor upon (verbal) request of Principal has started with the execution of the activities for Principal. 2. The parties are at liberty to prove that the agreement has been concluded in another manner. 3. The agreement will be concluded for an undefined time, unless from the content, nature or tenor of the granted commission derives, that this is concluded for a defined time. Article 4 - provision of information by Principal 1. Principal is required to make all data and documents, which Contractor in accordance with his opinion requires for the correct execution of the granted commission, timely available in the desired form and in the desired manner.

2 2. Principal shall inform Contractor about all information that is relevant for the execution of the commission. Principal warrants the correctness, completeness and reliability of the data and documents made available to Contractor, also if these originate from third parties, insofar from the nature of the commission it does not derive otherwise. 3. If and insofar Principal requests as such, the concerned documents will be returned to him. 4. The extra costs and extra fees deriving from the delay in the execution of the commission, emerged by the not, not timely or not properly making available of the requested data and documents, are for the account of Principal. Article 5 - Execution of the commission Contractor determines the manner in which and by which person the granted commission will be executed. Contractor is authorised to involve third parties in the execution of the commission after consultation with Principal. Article 404 Book 7 of the Dutch Civil Code will be hereby excluded. Article 6 - Secrecy 1. Contractor is, unless he has a lawful or professional duty to disclosure, obliged to secrecy towards third parties. 2. Contractor is not authorised to apply the information that will be made available to him by Principal, for a purpose other than for which it was obtained. However, an exception will be made hereto in case Contractor acts for himself in a disciplinary, civil or criminal procedure whereby these documents can be of importance. 3. Unless thereto by Contractor prior written permission has been granted, Principal shall not disclose the content of reports, advice or other whether or not written expressions of Contractor, that have not been composed or made with the intent to provide third parties with the information recorded therein. Principal shall also ensure that third parties cannot take knowledge of the content referred to in the previous sentence. 4. Contractor shall impose his obligations on the basis of this article to third parties involved by him. Article 7 - Intellectual property 1. Contractor reserves all rights with regard to products of the spirit which he uses or has used in the 2

3 framework of the execution of the commission of Principal, insofar these derive from the law. 2. The Principal is explicitly forbidden to multiply, disclose or exploit those products, including among others computer programs system designs, manners of working, advices, (model) contracts and other products of the spirit of Contractor, the one and the other in the broadest sense of the word, whether or not with involvement of third parties 3. The Principal is not permitted to make aids of those products of third parties available, other than for the gaining of an expert opinion over the activities of Contractor. Article 8 - Success fee 1. The Success fee of Contractor is stated in the cooperation agreement. 2. If before the commission is executed entirely, wages and/or prices undergo a change, then Contractor is authorised in case of duration agreements, to modify the agreed compensation accordingly, unless Principal and Contractor have made other agreements about this. 3. Turnover tax will be brought into account, if applicable, over all amounts due by Principal to Contractor. 4. File costs will be calculated in advance and included in the designated offer. These will however, be deducted after success of the commission from the Success fee. The paid file costs will not be repaid if, during the project, the application will be cancelled by one of the parties. Article 9 - Payment 1. Payment by Principal must take place, without deduction, discount or set-off, within the agreed payment terms, but in no case later than fourteen days after date of the invoice. Payment must take place in Euro s, unless stated otherwise, by means of transfer for the benefit of a bank account to be designated by Contractor. 2. If Principal has not paid within the term mentioned under 9.1, then Contractor is authorised, after he has summoned Principal at least once to pay, without further notification of default and notwithstanding the other rights of Contractor, to bring from the due date Principal the lawful interest into account until the date of altogether satisfaction. 3. All in-court and out-of-court (collection) costs made in reasonableness, that Contractor makes as a consequence of the non-compliance by Principal with his payment obligations, will be for the account of Principal. 3

4 4. If the financial position or the payment behaviour of Principal in the opinion of Contractor gives cause thereto, then Contractor is authorised to request from Principal that this provides without delay (additional) surety in form to be determined by Contractor. If Principal omits to provide the requested surety, then Contractor is authorised, notwithstanding his other rights, to suspend the further execution of the agreement immediately and is all that Principal is liable to pay to Contractor on whichever basis, directly payable upon demand. 5. In case of a jointly given commission, principals are, insofar the activities have been executed for the benefit of the joint principals, jointly and severally liable for the payment of the amount of the invoice. Article 10 - Reclamation 1. Reclamation with regard to the executed activities and/or the amount of the invoice must be made known in writing within thirty days after the sending date of the documents or information about which Principal makes a reclamation, or within thirty days after the discovery of the defect if Principal demonstrates that he could not discover the defect reasonably sooner, known to Contractor. 2. Reclamations as referred to in the first section, do not suspend the payment obligation of Principal. 3. In case of a justifiably issued reclamation, Contractor has the choice between modification of the fee brought into account, the amending free of charge or executing again of the rejected activities or the in whole or in part not (more) executing of the commission against a proportional refunding to of the fee already paid by Principal. Article 11 Delivery term 1. If Principal is liable to pay an advance payment, or he must make information and/or materials required for the execution, available, then, if a term is agreed, the term within which the activities must be rounded off, will not start sooner than after the payment is received entirely, respectively the information and/or materials have made available entirely. 2. Terms within which the activities must be rounded off, can only be regarded as a fatal term if this is explicitly agreed or if this derives from the nature of the commission. 3. The agreement can unless execution undoubtedly is permanently impossible not be dissolved by Principal because of exceeding of the term, unless Contractor executes the agreement also not or not entirely, within a reasonable term summoned to him in writing, after expiry of the agreed delivery term. Dissolution is then permitted in accordance with article 25 book 6 of the Dutch Civil Code. 4

5 Article 12 - Cancellation 1. Principal and Contractor can at all times cancel the agreement. 2. Cancellation must be communicated to the counterparty in writing. 3. The stipulations of section 1 of title 7, book 7 of the Dutch Civil Code are applicable, with the exception of article 7:404. Article 13 - Liability 1. Principal shall execute his activities to the best of his knowledge and abilities, and thereby observe the care that can be expected from an adviser. If an error will be made because Principal has provided him with incorrect or incomplete information, then Contractor is not liable for the damage emerged because of it. If Principal demonstrates that he has suffered damage by an error of Contractor that would have been avoided upon acting careful, then Contractor is only liable for that damage to a maximum of three times the amount of the fee for the concerned commission, unless at the side of Contractor there is an instance of wilful intent or gross negligence to be regarded equal therewith. 2. Principal safeguards Contractor for claims of third parties because or damage that is caused, because Principal has provided to Contractor incorrect or incomplete information, unless Principal demonstrates that the damage holds no connection with imputable acts or omissions from his side or is caused by wilful intent or gross fault of Contractor. Article 14 Internet traffic Principal and Contractor are aware that to the use of electronic mail risks are connected, such as among others, deforming, delay and transfer of viruses. Principal and Contractor shall do or omit all that reasonably may be expected of them, for the prevention of the emergence of such risks. Principal and Contractor are towards each other not liable for damage that possibly emerges as a consequence of the use of electronic mail. Article 15 Statute of limitations 1. Insofar in these General Terms and Conditions it is not stipulated otherwise, claim rights and other authorities of Principal on whichever basis towards Contractor in connection with the execution of activities by Contractor, shall in each case be forfeit after 1 year after the moment on which Principal became familiar with or reasonably could be familiar with the existence of these rights and authorities. 5

6 Article 16 - Applicable law and choice of court 1. The laws of the Netherlands are applicable to all agreements between Principal and Contractor to which these General Terms and Conditions are applicable. 2. All disputes that relate with agreements between Principal and Contractor, to which these terms and conditions are applicable, and which do not belong to the competence of the District Court, section Canton, will be resolved by the competent court of the place of the legal seat of Contractor. 3. In deviation of the stipulations in section 2, Principal and Contractor are authorised to present disputes to a committee for disputes. 6

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