GENERAL TERMS AND CONDITIONS OF NL ASSET MANAGEMENT B.V.
Effective July 2013
Article 1: APPLICABILITY
1.1 These General Terms and Conditions govern all assignments that are issued or accepted by NL asset management or one of its employees who is authorised to do so and who performs the work in question on behalf of NL asset management. These General Terms and Conditions form part of all agreements between NL asset management and the Principal.
1.2 Deviation from these General Terms and Conditions will be valid only if they are confirmed in writing by NL asset management. 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 July 2013 and can also be obtained at www.NLassetmanagement.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 asset management, either alone or together with one or more ontractors, undertakes towards one or more Principals, against payment of a fee, to perform asset and/or property management services.
b) An agreement pursuant to which NL asset management, either alone or together with one or more Contractors, undertakes towards one or more Principals, against payment of a Fee, to provide any other services that are directly or indirectly related to real estate in the broadest sense of the words.
NL asset management : NL asset management B.V., a private limited liability company, registered with the Chamber of Commerce under number 58153764, 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 asset management's other contractual party in respect of an Assignment.
Fee : The fee to which NL asset management is entitled in connection with an Assignment.
Article 3: ASSIGNMENT
3.1 An Assignment is concluded when NL asset management has confirmed the content of the Assignment to the Principal in writing or when NL asset management commences work on an ssignment.
3.2 Changes to an Assignment can be implemented only by written confirmation by NL asset management.
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 asset management, 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 3 months. Termination
must be effected in writing.
4.3 An Assignment for a fixed term ends when the Assignment’s agreed term has lapsed, unless it is stated in the Assignment that the fixed term will be tacitly renewed if not terminated. If it is
tacitly renewed an Assignment for a fixed term will end upon termination by either party, with due observance of a notice period of 3 months and with effect from the end of the agreed fixed term. Termination must be effected in writing.
4.4 Notwithstanding the provisions contained in the foregoing paragraphs of this Article, either party is authorized to terminate the Assignment effective 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 asset management the Fee due. That Fee will be paid in accordance with the provisions contained in the Assignment and in Article 6 of these General Terms and Conditions; in addition, NL asset management will be reimbursed for the costs it incurred in performing the Assignment or in connection with the Assignment.
Article 5: PERFORMANCE OF THE ASSIGNMENT
5.1 NL asset management 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 asset management in the performance of the Assignment. The Principal will not conclude any agreements with respect to the Assignment without involving NL asset management and will not conduct any negotiations in that respect.
5.3 ENGAGING AGENTS/THIRD PARTIES
5.3.1 In performing the Assignment NL asset management may engage the services of other legal entities or natural persons, such as agents. NL asset management will exercise due care when engaging third parties.
5.3.2 In the legal relationship with the Principal, these General Terms and Conditions apply accordingly to the services provided or to be provided by any third party referred to in Article 5.3.1 on the instructions of NL asset management.
5.3.3 In the event that the third party engaged by NL asset management within the meaning of Article
5.3.1 is NL real estate B.V., the General Terms and Conditions of NL real estate B.V. will apply alongside these General Terms and Conditions for the part of the Assignment that is performed by NL real estate B.V. In the event of any conflict between the General Terms and Conditions applied by NL asset management and the General Terms and Conditions applied by NL real estate B.V., the present General Terms and Conditions will prevail. The Principal declares that it is familiar with and accepts the content of the General Terms and Conditions of NL real estate B.V.
5.3.4 If the liability of NL asset management is based on a fault attributable to any third party or agent engaged by NL asset management within the meaning of Article 5.3.1 or 5.3.3, the liability of NL asset management will be limited to the amount that NL asset management can actually recover from the relevant third party or agent. Upon receipt of that amount NL asset management will pay it to the Principal.
5.4 During the term of the Assignment the Principal will make available to NL asset management 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 asset management. The Principal guarantees the correctness, completeness and reliability of the information provided to NL asset management, even if that information was received from third parties. The Principal is also obliged to provide NL asset management, 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: FEE AND COSTS
6.1 Unless the parties agree otherwise, the Fee and additional costs are exclusive of the turnover tax legally due.
6.2 NL asset management will lay down the amount of the Fee, or the bases for calculating the Fee, in the Assignment.
6.3 If it is not possible to determine the Fee in accordance with the provisions of the Assignment, NL asset management will determine the Fee 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 Fee, the Principal will owe a Fee calculated in the customary manner. If that is not possible the Principal will owe a Fee to be determined by NL asset management on the basis of generally accepted standards.
6.5 The Principal will owe NL asset management all costs reasonably incurred by NL asset management 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 asset management have agreed otherwise, claims against the Principal for Fees due are payable (i) at the agreed due date, (ii) if and as soon as the Assignment has been performed or (iii) if the Assignment ends for any other reason.
7.2 The Principal must make payment not later than 14 days after the invoice date – unless agreed otherwise – 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 asset management.
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 asset management arising from or in connection with the Assignment.
7.4 In the event that NL asset management 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 asset management 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 asset management, 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 Unless agreed otherwise in writing with the Principal, the Assignment does not include a mandate 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 after the Assignment has been accepted by NL asset management, they will be valid only after they have been confirmed in writing by NL asset management.
Article 9: LIABILITY AND INDEMNIFICATION
9.1 Liability of NL asset management, and/or any legal entity or natural person engaged by NL asset management, 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 asset management 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 abovementioned liability will be limited to the amount equal to the payment of 3 calendar months of the fixed part of the Fee that NL asset management charged or could have charged for the performance of the Assignment in question.
9.2 The Principal will indemnify NL asset management and/or legal entities or natural persons engaged by NL asset management 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 Assignment is governed by Dutch law.
10.2 All disputes between the Principal and NL asset management arising from the agreements they conclude, including disputes relating to the Fee, costs and the fulfilment of the Principal's
payment obligations towards NL asset management, will be submitted exclusively to the competent court in the District of Amsterdam, unless mandatory legal provisions prescribe otherwise.