Definitions

In these General Terms and Conditions of Delivery of 3stone Real Estate B.V. (the ‘General Conditions’), the terms listed below have the following meaning:
Contractor:
3stone Real Estate B.V., a private limited liability company;
Customer:
any natural person who or legal entity that purchases Services from the Contractor or with which/whom the Contractor concludes an Agreement or negotiates on the conclusion of an Agreement;
Agreement:
any professional services agreement concluded between the Contractor and the Customer, any amendment or addition to that agreement, and all legal and other acts related to the preparation or performance of that agreement;
Services:
all services or activities that are the subject of an Agreement, including: advice, agency in the purchase and sale of property, agency in the leasing or letting of property, and the valuation of objects.

 

1. Governing conditions

1.1. These General Conditions form part of all Agreements.

1.2. The Contractor expressly rejects the applicability of any terms or conditions of the Customer, which will not be applicable.

1.3. In the event of an Agreement concluded with more than one Customer, all those Customers will be jointly and severally bound by all the obligations that apply to a Customer under the Agreement.

1.4. Any amendments or additions to these General Conditions and/or the Agreement will apply only if and insofar as they have been recorded by the Contractor in writing and will apply only to that specific Agreement.

1.5. Contrary to the provisions of Articles 7:404, 7:407(2) and 7:409 of the Dutch Civil Code and irrespective of whether the assignment was given with a view to a specific person, all work will be accepted and performed exclusively by the Contractor; its Directors and the persons who work for the company will not be personally bound or liable and the assignment given to the Contractor will not end upon their death, if they are placed under compulsory guardianship or if they are granted a suspension of payments or are declared bankrupt.

2. Offers and the conclusion of Agreements

2.1. An offer or a quotation will not be binding on the Contractor but will serve only as an invitation to give an assignment. The Customer cannot derive any rights from obvious slips of the pen and errors in a quotation.

2.2. An Agreement will not have been concluded until the Contractor accepts an assignment from the Customer in writing or the Contractor performs an assignment.

2.3. An Agreement will be open-ended, unless it is apparent from the content or scope of the assignment given that the Agreement has a fixed term.

3. Performance of the Agreement

3.1. The Contractor will determine the manner in which and the employees by whom (employees of the Contractor itself, employees within the group to which the Contractor belongs, or third parties) an assignment given will be performed, but will take the wishes stated by the Customer into account to the extent possible.

3.2. All Services provided by the Contractor will be provided to the best of the Contractor’s ability and understanding. The Contractor will use its best endeavours to achieve the best possible result, but expressly cannot warrant that a specific result will be achieved.

3.3. The Customer must provide the Contractor with the facilities required to enable the Contractor to perform the Agreement and must ensure that its employees provide the necessary cooperation. The Customer will furthermore be required to provide all the information which it must understand to be relevant to the performance of the assignment and/or that the Contractor needs in its opinion in order in order to perform the Agreement correctly, in time and in the manner required. The Customer warrants that that information is correct, complete and reliable. Without the Customer’s permission, the Contractor will not use the information made available to it in the context of the performance of the Agreement for any purpose other than that for which it was provided.

3.4. The Customer must refrain during the term of the Agreement from any activities that may hinder the Contractor in the performance of the Agreement or may thwart its activities.

3.5. Unless otherwise expressly agreed in writing, the Contractor will not be authorised to enter into any agreements with third parties or to conduct negotiations or consultations on behalf of the Customer, and the Services (therefore) do not include acting as an agent.

3.6. In no event may Services provided by the Contractor be qualified as legal, tax, fiscal, financial or technical advice. The Contractor provides only commercial Services.

4. Fee

4.1. The Contractor will charge the Customer the agreed fees and any additional costs for the Services. The Contractor’s fee is exclusive of expenses and exclusive of fee statements from any third parties engaged.

4.2. The Customer will owe the fee for the Services provided by the Contractor as soon as the Services have been provided or at such earlier or later date as specified in the Agreement.

4.3. If the Customer wishes to make additions or changes to the Services to be provided by the Contractor under the Agreement and the Contractor believes that those Services will consequently become more challenging or extensive, that will constitute additional work, also if a fixed price was agreed between the parties. If the Contractor believes that additional work will be involved, it will notify the Customer accordingly as soon as possible and notify it of the consequences for the price and for the term within which the Services can be provided by the Contractor. The Customer will be deemed to have accepted the performance of the additional work and the costs and other consequences involved, unless it objects in writing immediately after such notification from the Contractor.

4.4. If the Services consist of agency in the conclusion of an agreement between the Customer and a third party (regarding, for example, the purchase or sale of property/an object or regarding the leasing or letting of property/an object), the Services will be regarded as having been provided the moment the Customer cooperates in an act as a result of which the owner or user of the property/object changes or the property/object is made available or is allocated to the Customer or to a third party that is relevant to the Customer.

4.5. The Contractor will be fully entitled to the (agreed) compensation if the agreement referred to in Article 4.4 between the Customer and a third party is concluded after the Agreement has ended, but the agreement between the Customer and the third party is due entirely or partly to work performed by the Contractor under the Agreement. The agreement between the Customer and the third party will in any event be deemed to be due to work performed by the Contractor if the agreement is concluded within twelve months of the end of the Agreement.

4.6. The Contractor will also be entitled to compensation if: a) the Customer itself or with the assistance of a third party during the term of the Agreement concludes or causes the conclusion of an agreement to which the Services relate; b) the object in question is voluntarily auctioned during the term of the Agreement; or c) the Contractor has performed work and the Customer cannot reasonably refuse to enter into the agreement to which the Services relate with the Contractor.

5. Payment

5.1. The Customer must pay the Contractor the amounts charged to the Customer within 15 days of the invoice date

5.2. All amounts charged to the Customer must be paid without any discount or deduction. The Customer will not have a right of set-off. The Customer may furthermore not suspend any payment obligation towards the Contractor.

5.3. The Customer will be in default upon the mere expiry of a term of payment. In that case all claims, on any ground whatsoever, of the Contractor against the Customer will fall due immediately. The Customer will owe interest for late payment on all amounts that have not been paid by the latest on the final day of the payment period, as from that day, equal to the statutory commercial interest rate that applies at that date in the Netherlands, increased by a surcharge of 1%.

5.4. If the Customer is in default towards the Contractor, it will be required to reimburse the court and out-of-court costs to the Contractor in full. The out-of-court costs to be reimbursed by the Customer will be at least 15% of the unpaid amount, subject to a minimum of EUR 250, to be increased by the VAT due on that amount. Any amount received from the Customer will first serve as payment of any interest and costs due as referred to in Article 5.3 and 5.4, and then as payment of the oldest invoices. This order of deduction will also apply if the Customer has stated a different order.

5.5. The Contractor may at any time demand payment in advance or demand that the Customer furnish adequate security before the Contractor performs (or further performs) its obligations.

6. Force majeure

6.1. If a party is unable to fulfil its obligations towards another party to the Agreement due to an event of force majeure, the fulfilment of those obligations will be suspended for the duration of the event of force majeure.

6.2. If the event of force majeure lasts three months, either of the parties will have the right to terminate the Agreement in writing in full or in part, insofar as the event of force majeure so justifies.

6.3. If an event of force majeure occurs on the part of the Contractor, the Customer will not be entitled to any damages, not even if the Contractor has drawn any benefit from the event of force majeure.

6.4. An event of force majeure is defined as any circumstance beyond a party’s control as a result of which it is unable to fulfil its obligations towards the other party in full or in part, or as a result of which it cannot reasonably be required to fulfil its obligations, irrespective of whether that circumstance was foreseeable at the date of conclusion of the Agreement. For the Contractor, such circumstances include: strikes and lockouts, embargoes, riots, business interruptions or other problems at the Contractor, its suppliers or third parties engaged by it, sickness and/or tight conditions on the labour market, measures of any government body and/or tax increases.

6.5. A party must inform the other party as soon as possible of an event (or imminent event) of force majeure.

7. Complaints and warranties

7.1. The Services must be inspected by the Customer upon delivery. If that first inspection shows any defects in the provision of the Service, such defects must be reported to the Contractor in writing within 21 days, on pain of forfeiture of the right to complain. Defects that cannot reasonably be discovered within that period must be reported to the Contractor in writing no later than 21 days after being discovered, on pain of forfeiture of the right to complain.

7.2. The Customer must provide all the cooperation required to investigate the complaint. If the Customer fails to cooperate or if an investigation is otherwise impossible or no longer possible, the complaint will not be considered and the Customer will have no rights in that context. If the complaints have proven unfounded, the costs of investigating the complaints will be payable by the Customer. The Customer cannot derive any rights from the consideration of a complaint.

7.3. If the Customer files a timely, correct and justified complaint regarding defects in a Service and is furthermore not in default towards the Contractor, the Contractor may, at its option, have the defective Services performed properly after all, refund all or part of the agreed price, credit the amount invoiced, or grant the Customer a discount on the agreed price to be determined in consultation. By providing one of the performances referred to here, the Contractor will be fully discharged in respect of its obligations and the Customer will not be entitled to any further compensation or damages and will not have the right (otherwise than under Article 9) to terminate or dissolve the Agreement.

8. Liability and indemnification

8.1. The Contractor will in no event be liable for any indirect loss incurred by the Customer, including consequential loss, losses due to delays, loss of profit, frustrated expectations, lost opportunities, economic loss other than pure financial loss and loss caused by infringement of third-party rights.

8.2. If Services are found to be defective, the Contractor will not be under any liability (including liability to pay compensation) other than that provided for in Article 7 of these General Conditions. All liability for any other loss arising from the performance of the Agreement by the Contractor is excluded.

8.3. If it is at any time established in court that the Contractor is indeed liable for any further loss arising from the performance of the Agreement by the Contractor, the Contractor’s liability to pay compensation will in all cases be limited to the amount paid by the Contractor’s insurance company.

8.4. If, for any reason whatsoever, the insurer does not make payment, the Contractor’s liability to pay compensation will be limited to the amount invoiced for the Service. In that context one and the same Service or the outcome of one Service (such as a consultancy report) will be regarded as one harmful event, irrespective of the number of cases in which the Customer used that Service or that outcome.

8.5. If the Contractor has involved any third parties in the performance of the Agreement, the Contractor will not be liable for any errors or actions of those third parties, except insofar as the Customer proves that the Contractor should not reasonably have chosen that third party.

8.6. The Contractor may not invoke these limitations of liability in respect of loss caused by intent or recklessness of the Contractor or executive subordinates who form part of its Board of Directors or management.

8.7. If the Contractor makes a mistake in the performance of the Agreement that is obvious to the Customer, the Customer must immediately inform the Contractor accordingly. If it fails to report that mistake to the Contractor, the Contractor will not be liable for the loss resulting from the mistake, except insofar as the loss would also have occurred if the Customer had immediately reported the mistake.

8.8. The limitations of liability recorded in this Article are stipulated also for the benefit of the third parties engaged by the Contractor in the performance of the Agreement, who can therefore directly invoke these limitations of liability. It is therefore a third-party clause within the meaning of Article 6:253 of the Dutch Civil Code and is stipulated for no consideration in respect of all third parties. The Customer cannot revoke the clause.

8.9. Insofar as a third party incurs loss that exceeds the Contractor’s liability to pay compensation under this Article, the Customer will indemnify the Contractor in that context.

9. Term of the Agreement, termination, default and dissolution

9.1. The Agreement will be open-ended, unless otherwise agreed. The Customer and the Contractor may at any time terminate the Agreement in writing while observing a three-month notice period. This early termination option will also apply to a fixed-term Agreement.

9.2. An Agreement will in any event end when the Services have been completed (or the assignment has been completed).

9.3. If the Contractor has given notice of termination on the grounds of Article 9.1, or if the Agreement ends on the grounds of the provisions of Article 9.4, 9.5 or 9.6 of these General Conditions, the Contractor will be entitled to compensation by the Customer on the grounds of the loss resulting from surplus staff , which must be proven, , and will also be entitled to compensation of any additional costs reasonably incurred as a result of the early termination of the Agreement, such as costs related to subcontracting.

9.4. If the Customer fails to fulfil any obligation arising for it from the Agreement or to do so properly or in time, the Customer will be in default and the Contractor will be entitled, without any notice of default or judicial intervention:

  • to suspend the performance of the Agreement (irrespective of whether it is a fixed-term or open-ended Agreement) and any agreements directly related to the Agreement, until performance has been sufficiently guaranteed; and/or
  • to terminate the Agreement and any agreements directly related to the Agreement (irrespective of whether they are fixed-term or open-ended agreements) in full or in part (whether or not prematurely) by means of written notification to the Customer; all of this without prejudice to the Contractor’s other rights under any Agreement with the Customer whatsoever and without the Contractor being required to pay any damages.

9.5. In the event of bankruptcy or a suspension or provisional suspension of payments, or if the Customer’s business is closed down or liquidated, the Contractor will be authorised to terminate all Agreements (irrespective of whether they are fixed-term or open-ended Agreements) with immediate effect (whether or not prematurely) by means of written notification to the Customer, unless the Customer or its trustee or administrator undertakes towards the Contractor at its written request within a reasonable period that it is willing to live up to the Agreement(s) in question, in which case the Contractor will be entitled without any notice of default to suspend the performance of the Agreement(s) in question until payment has been sufficiently guaranteed.

9.6. The Contractor will furthermore have the right to prematurely terminate the Agreement (irrespective of whether it is a fixed-term or open-ended Agreement) if it cannot reasonably be required to complete the Services. The Contractor itself will assess whether or not that is the case.

9.7. If an event as referred to in (i) Article 9.4, (ii) Article 9.5 or (iii) Article 9.6 occurs, (i and iii) all the Contractor’s claims against the Customer under the Agreement(s) in question and (ii) all the Contractor’s claims against the Customer will fall due immediately and in full, respectively.

9.8. In the event of notice of termination (Article 9.3) and termination (whether or not premature) as referred to in Article 9.4, 9.5 and 9.6 of these General Conditions, the Contractor will remain entitled in all cases to payment of compensation and costs for the work performed until that date, whereby the Customer will be provided with the provisional outcome of the work performed until that date. Any extra costs involved will be charged to the Customer. Insofar as the Contractor must cooperate in the transfer of work to third parties and such transfer of work involves extra costs for the Contractor, those costs will be charged to the Customer.

9.9. The applicability of Article 6:278 of the Dutch Civil Code is expressly excluded.

9.10. When the Agreement ends, each of the parties must immediately return to the other party all goods, documents, etc. of that other party that are in its possession, on the understanding that the Contractor may keep a copy of each document on which the work is based, which copy will be intended for the Contractor’s accounting records.

9.11. If after termination of the Agreement any work arises from the Agreement that must be performed by the Contractor, the additional costs must be paid by the Customer and the Contractor will charge such costs to the Customer separately.

10. Transfer of rights

10.1. The Contractor will be permitted to transfer the rights arising from any Agreement with the Customer to third parties. The Customer may do so only with the Contractor’s prior written consent.

11. Intellectual property; goods made available by the Contractor

11.1. The Customer will not acquire any intellectual property rights in respect of the Services or their results.

11.2. The Customer will be expressly prohibited from multiplying, publishing or commercialising the Services or their results, including software, designs, procedures, advice, reports, model or other contracts, cash flow models, plans of approach and other products of the mind of the Contractor, all of this in the broadest sense of the words, whether or not by engaging third parties, unless those Services are expressly intended for multiplication, publication and/or commercialisation (and that has been recorded in writing). Publication may therefore take place only with the Contractor’s prior consent. The Customer will have the right to multiply the written documents for use within its own organisation, insofar as that is in keeping with the purpose of the Agreement. In the event of premature termination of the Agreement, the above will apply accordingly.

11.3. The Contractor declares that to the best of its knowledge the Services do not infringe any third-party intellectual property rights that apply in the Netherlands. In the event of claims from third parties regarding infringement of such rights, the Contractor may, if necessary, replace or modify the Services in question or dissolve the Agreement in full or in part. The Customer will have the right to terminate the Agreement only insofar as it cannot reasonably be required to continue the Agreement.

11.4. The Customer must immediately inform the Contractor of any third-party claim regarding infringement of intellectual property rights in respect of the Services. In the event of such a claim, only the Contractor will be authorised to file a defence, to take legal measures against that third party on behalf of the Customer, or to enter into a settlement with that third party. The Customer will refrain from all such measures insofar as it can reasonably be required to do so. The Customer must give the Contractor all cooperation in all cases.

11.5. The Customer must indemnify the Contractor in particular against any and all loss that the Contractor may incur as a result of alleged infringement by the Contractor of third-party intellectual property rights if the Contractor has allegedly infringed those rights by using data, documents or objects or other property made available to the Contractor by the Customer for the performance of the Agreement.

12. Taking over employees The Customer will not be permitted during the performance of the Agreement and for a period of one year after its termination to hire any persons who are or were involved on the part of the Contractor in the performance of the Agreement, or to negotiate on employment with such persons, otherwise than in consultation with the Contractor.

13. Expiry period

13.1. Except insofar as otherwise provided in these General Conditions, rights of action and other powers of the Customer towards the Contractor in connection with the performance of the Agreement by the Contractor will expire in any event one year after the date on which the Customer became aware or could reasonably have become aware of the existence of those rights and powers. In all cases those rights and other powers will lapse two years after the Services were provided.

13.2. The Contractor will in no event be under any obligation to pay damages two years after the provision of the Services.

14. Language and order of priority

14.1. These General Conditions were drawn up in Dutch and translated into English. In the event of discrepancies between the two versions (or their interpretation), the Dutch text will prevail.

14.2. In the event of full or partial conflict between the provisions of the General Conditions and the provisions of the Agreement, the provisions of the Agreement will prevail. Otherwise the General Conditions will continue to apply.

15. Governing law and competent court

15.1. These General Conditions and the Agreement are governed by Dutch law.

15.2. Except insofar as otherwise provided by mandatory rules of law, any and all disputes that arise in connection with the Agreement or these General Conditions will be subject to the ruling of the competent court of Amsterdam, on the understanding that the Contractor will have the right to file claims against the Customer, whether or not at the same time, with other legal bodies that have jurisdiction to hear and decide on such claims.