In the General Terms and Conditions the terms listed below have the following meaning:
Colliers: Colliers Netherlands B.V. and/or one or more legal entities and companies that are affiliated with it in a group within the meaning of 2:24b of the Dutch Civil Code (Burgerlijk Wetboek);
Assignment: The agreement(s) governing the assignment as described in Article 3; Client: Colliers’s other contractual party with respect to the Assignment;
Parties: Colliers and the Client;
Real Estate Contract: a contract between the Client and a third party in connection with one or more immovable properties, and/or rights on these, such as, but not exclusively, a rental contract or purchase contract.
Fee: the fee and/or remuneration and/or commission payable by the Client to Colliers for the services provided and goods supplied by it. Terms and Conditions: This document entitled ‘General Terms and Conditions’.
Article 2. Applicability
1. The Terms and Conditions govern any and all Assignments, form part of any and all agreements between Colliers and the Client and govern any and all related acts (including legal acts) on the part of Colliers.
2. In the event of any inconsistency the Assignment prevail above the Terms and Conditions.
3. If and insofar as there may be a discrepancy between the Dutch text of the Terms and Conditions and any translation thereof, then the Dutch text will be binding.
Article 3. Tender and assignment
1. Every tender issued by Colliers is free of obligation and has a validity period of one month.
2. An Assignment is defined as the agreement whereby Colliers undertakes to the Client, in exchange for payment of the Fee, to perform services and/or provide goods that are directly or indirectly connected with immovable properties in the broadest sense of the term, including, though not exclusively, bringing about one or more Real Estate Contracts.
Article 4. Periods
1. Unless stated otherwise, the periods specified by Colliers to the Client are indicative and not intended as expiry periods or strict deadlines.
2. The Assignment comes about at the time that Colliers accepts the Assignment in writing, or as much earlier as Colliers, at the request of or following consultation with the Client (or one or more of its employees), commences the implementation of the Assignment.
Article 5. Implementation of the Assignment
1. Replacing articles 7:404 and 7:407(2) of the Dutch Civil Code, all assignments are accepted and carried out exclusively by Colliers.
2. Colliers will implement the Assignment to the best of its ability, and taking due regard of the interests of the Client, but does not guarantee the achievement of the envisaged result.
3. If Colliers engages a legal entity or natural person for the implementation of the Assignment, then Colliers is not liable towards the Client for a shortcoming of this legal entity or natural person, and Colliers is authorized to accept limitations of liability of this legal entity or natural person, partly on behalf of the Client.
4. The Client is obliged to provide Colliers in a timely manner with all relevant information that is, or could be necessary for a proper and rapid implementation of the Assignment. The Client is responsible for the correctness, completeness and reliability of the information and documents provided to Colliers, also if the information and documents originate via or from third parties.
5. For the duration of the Assignment the Client will refrain from activities that could impede or hinder the proper implementation of the Assignment by Colliers. The Client will not make use of similar services of others than Colliers in connection with the immovable property or properties for which the Assignment is granted, except insofar as other agreements have been made.
6. During the term of the Assignment, the Client will not bring about any Real Estate Contract for which the Assignment is granted and will not carry out any negotiations to this end, failing which the Fee is payable as if Colliers had carried out the Assignment.
7. Colliers is not permitted to accept an assignment in connection with an immovable property in respect of which it already has an assignment from another client, unless the services to be provided do not entail any conflict of interest. If the foregoing arises from two or more ongoing assignments, then Colliers must inform one or both contracting parties of this and enter into consultations. The consultations must lead to one of the assignments being suspended or terminated.
Article 6. Term and termination of the assignment
1. In the event that a continuing performance contract has come about for a fixed duration, after the expiry of this period this will be continued for a period of always one year. Termination of a continuing performance contract takes place by cancellation at the end of the duration or, in the case of a contract for an indefinite period, at any time, with the observance in both cases of a period of notice of three months. Cancellation must take place by registered letter.
2. In the event that there is an Owners’ Association, cancellation must become apparent from a decision to this effect of the general meeting of the members.
3. In the event that a contract is entered into by the Parties in connection with one or more specific assignments (not being continuing performance contracts), in the event of premature termination the Client is in any event obliged to reimburse Colliers for the time spent and costs incurred for activities, including but not restricted to the costs of third parties engaged by Colliers. Moreover, the Client must then pay 15% of the (to be reasonably expected) Fee that would have been payable by the Client in the event of the full implementation/fulfilment of the Assignment.
4. Each of the Parties is authorized to terminate the Assignment by means of written cancellation, with immediate effect, due to a suspension of payment or the bankruptcy of the other party.
5. The establishment of a Real Estate Contract, and with it the fulfilment of the Assignment, will also be defined as the cooperation by the Client with an action as a result of which the immovable property or properties to which the Assignment pertains will be wholly or partly sold, rented out or allotted to the Client and/or a third party, in connection with which the implementation of the Assignment is not continued. A direct or indirect transfer of shares in the capital of the Client in connection with which the implementation of the Assignment is not continued will also be regarded as the establishment of a Real Estate Contract.
Article 7 The Fee
1. In the event that the nature of the Real Estate Contract that has been concluded deviates from the Assignment without any further agreements being made in advance with respect to the amount of the Fee, the Client will owe the Fee calculated in the customary manner or, if that is lacking, the amount of the Fee that Colliers determines on the basis of generally accepted standards.
2. The Client will also owe the Fee in the event that the Real Estate Contract is concluded after the Assignment has ended but is the consequence of acts that are contrary to Article 5.5 or that conclusion is related to Colliers’s provision of services to the client during the term of the Assignment, including candidates who were already known during the term of the Assignment. In the absence of evidence to the contrary, this connection will be assumed to be present if the Real Estate Contract is established within six months of the termination of the Assignment.
3. If an established Real Estate Contract is not implemented due to a shortcoming of one of the parties to the Real Estate Contract or for other reasons, this does not affect the entitlement of Colliers to the Fee. Real Estate Contracts whose definitive establishment or obligation of implementation is dependent on a suspensory or resolutive condition pursuant to a clause of the Real Estate Contract then the Fee is also dependent on this, unless one or both of the parties to the Real Estate Contract do not apply the condition in question in accordance with its purport.
4. Unless agreed otherwise, the Client will reimburse the disbursements such as, but not exclusively, fiscal and legal expenses, advertising expenses and other expenses reasonably incurred by Colliers that it will incur or has incurred for the benefit of the Client in the implementation of or in connection with the Assignment.
5. All stated amounts in the Assignment will be annually indexed in accordance with the consumer price index (CPI) published by Statistics Netherlands (Centraal Bureau voor de Statistiek – CBS). An amount will not be adjusted if an indexation leads to an amount lower than the last applicable amount.
Article 8. Payment
1. All amounts charged to the Client must be paid within two weeks of the invoice date without deferment, setoff or deduction.
2. Colliers will be entitled to settle in the interim any claims on the basis of advances made and expenses incurred.
3. Turnover tax will be added to the Fee and the associated costs.
Article 9. Liability
1. Any liability of Colliers is limited to direct pecuniary damage up to an amount equal to a maximum of three times the Fee or, in the case of a continuing performance contract, three times the fee for the Assignment in question over the last calendar year, with a maximum of €1 million.
2. The liability is in any event always limited to the amount that will be paid out by the liability insurer of Colliers in the case in question, with the addition of the amount of the applicable policy excess.
3. In the case of a collegial Assignment, Colliers is not liable for damage due to attributable shortcomings, unlawful action or otherwise caused by a colleague office in the implementation of the Assignment. In the case of a collegial Assignment the Terms and Conditions prevail over those of the colleague office.
4. Any claim to compensation will lapse due to the expiry of one year after the day following that on which the Client has become aware of the damage and of Colliers as the party liable for this.
5. After a term of three years has expired as from the date on which the Assignment has been provided/fulfilled, any right that the Client may have against Colliers in respect of damage caused by any defects and/or errors on the part of Colliers in connection with its carrying out the Assignment will lapse.
6. Colliers will not be liable for any damage that was caused by breaches on the part of third parties or defects in information that has been provided or gathered.
7. The limitation of liability referred to in this article does not apply insofar as damage is the result of willful misconduct or gross negligence on the part of Colliers.
Article 10. Complaints and disputes
1. Colliers has a complaints scheme on its website, which the Client can invoke.
2. Colliers is a member of the Dutch Association of Real Estate Brokers and Real Estate Experts (Nederlandse Vereniging van Makelaars – NVM). The NVM offers the disputes scheme stated below under points 2a to 2g in connection with brokerage and valuation assignments.
a. Disputes between Colliers and the Client concerning the establishment or the implementation of the Assignment in connection with services provided or to be provided by Colliers can be submitted by both the Client and Colliers to the Estate Agent Dispute Resolution Committee (Geschillencommissie Makelaardij), Bordewijklaan 46, 2591 XR The Hague (https://www.degeschillencommissie.nl/english/).
b. The Dispute Resolution Committee is authorised to take cognisance of disputes regarding liability for damage only in the event that the damage in question does not exceed a financial interest of EUR 10,000.
c. The Dispute Resolution Committee will accept a dispute to be handled only in the event that the Client has first submitted its complaint to Colliers, in full and described clearly.
d. After the complaint has been submitted to Colliers, the complaint must be submitted to the Dispute Resolution Committee within three months after it has arisen.
e. In the event that the Client submits a dispute to the Dispute Resolution Committee, Colliers will be bound by that decision. In the event that Colliers wishes to submit a dispute to the Dispute Resolution Committee it must request the Client, in writing or in another suitable manner, to state within five weeks whether it accepts Colliers’s doing so. In that context Colliers must give notice that after that term has expired it will deem itself to be free to submit the dispute to the court.
f. The Dispute Resolution Committee will render a decision with due observance of the provisions stipulated in the rules and regulations that govern it. The Dispute Resolution Committee’s rules and regulations will be sent upon request. The Dispute Resolution Committee will render its decision in the form of a binding opinion. A fee is due for the handling of a dispute.
g. Only the court or the Dispute Resolution Committee referred to above is authorised to take cognisance of disputes.
Article 11. Money Laundering and Terrorist Financing (Prevention) Act
In connection with applicable legislation, including supervisory legislation and including the Money Laundering and Terrorist Financing (Prevention) Act, Colliers is obliged to establish the identity of its clients and, under certain circumstances, to report unusual transactions to the competent authority. By issuing an Assignment the Client confirms that it is aware of this and, insofar as necessary, grants its permission to this end.
Article 12. Personal data
1. Personal data of the Client will be processed in the context of the Assignment that has been issued. In addition, this personal data will be recorded in a file for direct marketing purposes. Direct marketing purposes are defined as, among other things, activities such as issuing invitations for seminars and sending newsletters by Colliers. If the Client objects to this, the Client can notify Colliers of this, following which the personal data will be immediately removed from the direct marketing file.
2. Given the worldwide structure of the group of companies to which Colliers belongs, personal data provided by the Client may be sent to, used, stored or otherwise processed in a country other than the country in which the information was acquired. In such cases Colliers will ensure an appropriate level of protection.
Article 13. Confidentiality
1. The Client will not disclose or make available to third parties, in any manner whatsoever, the information provided by Colliers, such as the content of valuations, reports, recommendations or any other oral or written statements made by Colliers, unless disclosure is mandatory pursuant to any provision of national or international law, regulation or other rule (including professional rules).
2. Colliers is entitled to inform business relations of the Client’s name and the main elements of the work that it has performed, unless the Parties agree otherwise in the Assignment.
Article 14. Intellectual property
The intellectual property rights on the documents provided by Colliers such as, but not restricted to, maps, floor plans, drawings, mathematical models, recommendations and reports, belong to Colliers. The Client is entitled to duplicate these documents for its own use insofar as this is appropriate within the aim of the Assignment.
Article 15. Final provisions
1. If and insofar as Colliers carries out activities for the built environment for the Client consisting of designing, advising and organizing, for which activities the legal relationship of the Client and the architect, engineer and advisor The New Regulation (De Nieuwe Regeling – DNR) has been drawn up, without prejudice to these Terms and Conditions, the DNR as this reads three months before the commencement of the contract applies.
2. For practical reasons the DNR cannot be included in these Terms and Conditions. The DNR can be downloaded from http://dnr.colliers.nl. It can also be provided free of charge at the Client’s first request.
3. In the event of inconsistency, the Conditions prevail over the DNR.
Article 16. Applicable law and court of competent jurisdiction
1. Any and all legal relationships between the Client and Colliers are governed exclusively by Dutch law.
2. All disputes between the Client and Colliers arising from or connected with the Assignment – insofar as they are submitted to the court – must be submitted to the court of competent jurisdiction in Amsterdam.