General Terms and Conditions Insight Real Estate B.V.
These General Terms and Conditions are a translation of the ‘Algemene Voorwaarden Insight Real Estate B.V.’ In case of any difference in interpretation the Dutch version will prevail.
• These conditions apply to services relating to real estate. Unless otherwise stated, real estate is understood to mean: immovable property and limited rights thereto.
• Unless expressly agreed otherwise, the agreed fee and additional costs are exclusive of legally owed turnover tax.
• Each representative of Insight Real Estate B.V. carries out assignments accepted by him/her to the best of his/her knowledge and ability and with due regard for the interests of the client. Unless otherwise agreed, the representative of Insight Real Estate B.V. may have the work required to carry out the assignment carried out by others, under his/her responsibility. In some cases, Insight Real Estate B.V. may require input from third parties to provide all or part of the services. Where Insight Real Estate B.V. intends to outsource to third parties, Insight Real Estate B.V. will request permission from the client before outsourcing. Insight Real Estate B.V. is not liable for supervising or monitoring the performance of third parties.
• If an assignment is given by more than one person, each of them is jointly and severally liable for the amounts owed to the representative of Insight Real Estate B.V. under that assignment.
• In the event of the client’s death, the assignment ends at the time when the representative of Insight Real Estate B.V. becomes aware of the death. The provisions of Article IV.2 apply mutatis mutandis.
• Claims for fees owed are due and payable if and as soon as the assignment has been carried out or ends for another reason, unless these conditions indicate otherwise or the client and the representative of Insight Real Estate B.V. agree otherwise. This also applies to disbursements made and expenses incurred. The client and the representative of Insight Real Estate B.V. can – in accordance with Article V.6 – agree on payment in advance by the client. They can also agree on an interim settlement of disbursements made and expenses incurred.
• Unless otherwise stated in these General Terms and Conditions, “assignment” means an assignment to provide services relating to the conclusion of an agreement regarding real estate.
• Unless otherwise stated in these General Terms and Conditions, “services” means the services provided by Insight Real Estate B.V. to the client in the context of the assignment, as specified in the order confirmation.
• The client appoints Insight Real Estate B.V. to provide services under these General Terms and Conditions and under the conditions set out in the order confirmation. Each order confirmation constitutes an agreement in itself that contains the latest version of these General Terms and Conditions provided to the client (together these documents form the “assignment”).
• The full scope of the services to be provided that form part of the assignment are stated in the order confirmation. Insight Real Estate B.V. is in no way bound to perform a role or function other than that documented in the order confirmation.
• The client will provide all necessary cooperation to enable each representative of Insight Real Estate B.V. to comply with the obligations with regard to all applicable laws, in particular those relating to ‘know your client’, money laundering and the prevention of other financial crimes, and data protection. Both the client and Insight Real Estate B.V. agree to comply with all applicable laws when fulfilling the obligations relating to the Assignment.
• The representative of Insight Real Estate B.V. refrains from accepting an assignment with regard to real estate for which he/she already has an assignment from another client. Does it follow from a current assignment that the representative of Insight Real Estate B.V. provides a service to that client with regard to real estate in respect of which he/she would simultaneously have to provide a service to another client under another current assignment, while providing the service to one client is in conflict with the interests of the other client, the representative of Insight Real Estate B.V. will consult with each of these clients or one of them, at his/her discretion. The representative of Insight Real Estate B.V. will in any case open this consultation as soon as the stage of negotiations between the relevant clients is reached. The consultation should lead to the suspension or possible termination of one of the assignments.
During the consultation, the representative of Insight Real Estate B.V. also raises the possibility that the client whose assignment is suspended or terminated engages a fellow real estate advisor. If an agreement is concluded between the clients, whether or not in conflict with the foregoing, the representative of Insight Real Estate B.V. can, in cases where the law does not prohibit the charging of fees, only derive a right to a fee in respect of one of them.
• The assignment as such does not constitute a power of attorney for the representative of Insight Real Estate B.V. to conclude agreements on behalf of the client, but powers of attorney can be attached to the assignment and these can also be issued later.
• The client will refrain from activities that could hinder the representative of Insight Real Estate B.V. in fulfilling his/her assignment or could interfere with his/her activities. The client does not use similar services from others than the representative of Insight Real Estate B.V., unless other arrangements have been
expressly made. He/she does not conclude any agreement without the assistance of the representative of Insight Real Estate B.V. and does not conduct any negotiations to that end.
• If a client gives an assignment to several estate agents, the provisions of this paragraph apply fully to each of these assignments and the client therefore owes each of these estate agents compensation for disbursements, expenses and commission in accordance with this paragraph, except to the extent that other agreements in this regard have been expressly made with these estate agents.
• An assignment runs for an indefinite period. It can end by, among other things:
• fulfilment by the representative of Insight Real Estate B.V.;
• withdrawal by the client;
• termination by the representative of Insight Real Estate B.V.
• The client pays a fee to compensate for the services. The fee, or its calculation method, is in accordance with what is set out in the order confirmation.
• The client owes the representative of Insight Real Estate B.V. a fee if an agreement is concluded during the term of the assignment, even if it deviates from the assignment. This also applies if this agreement is not the result of services provided by the representative of Insight Real Estate B.V.
• The client also owes a fee if the agreement is concluded after the end of the assignment, but is the result of actions contrary to Article II.8 or if this conclusion is related to services provided by the representative of Insight Real Estate B.V. to the client during the term of the assignment. Unless there is proof to the contrary, this connection is assumed to exist if the agreement is concluded within six (6) months after the end of the assignment.
• If an agreement concluded is not executed due to breach of contract by one of the parties or for any other reason, this will not affect the right of the representative of Insight Real Estate B.V. to a fee.
• The conclusion of an agreement also includes the client’s cooperation in an action as a result of which the real estate is sold, rented or assigned in whole or in part to the client and/or a third party and, in connection therewith, no further progress is made with the execution of the assignment.
• If, due to the actions of his/her client, the representative of Insight Real Estate B.V. cannot determine the amount on which he/she should charge a fee, he/she has the right to determine this amount according to his/her own assessment and the fee calculated based on this amount is owed.
• Subject to the provisions of Article III.4, the commission is due and payable at the time the agreement is concluded.
• Unless otherwise agreed, the client will reimburse the costs incurred by the representative of Insight Real Estate B.V. on behalf of the client. The representative of Insight Real Estate B.V. must consult with his/her client in advance regarding the incurrence of these costs and their extent. This also applies if the assignment is suspended or terminated by withdrawal, termination or otherwise.
• Without prejudice to the provisions of Article IV.1, the client who withdraws or suspends an assignment also owes the representative of Insight Real Estate B.V. compensation. If no agreements have been made about the amount of this compensation, it must be determined reasonably.
• The client and the representative of Insight Real Estate B.V. may, if there is reason to do so, declare the provisions of Article IV.2 to apply mutatis mutandis in the event that the assignment ends in a manner other than withdrawal.
• Invoices from Insight Real Estate B.V. are payable from the date of each invoice and must be paid within fourteen (14) days.
• The client from whom payment of fees, disbursements or expenses has been requested in writing by means of an invoice or otherwise and from whom no payment has been received within 30 days after a second written request, is liable for the costs incurred by the representative of Insight Real Estate B.V. from the moment these 30 days expire, both judicially and extrajudicially to collect his claim. From that moment on it also owes interest on that claim; the interest rate is equal to the statutory interest (Article 6:120 of the Dutch Civil Code).
• The client pays all amounts by electronic transfer to the bank account of Insight Real Estate B.V. stated on the invoice. Insight Real Estate B.V. cannot accept payment in cash.
• The client will pay all amounts owed to Insight Real Estate B.V. with regard to the assignment without settlement and free of any deduction.
• If the client is obliged under applicable law to withhold an amount from any payment, this payment will be increased in order to ensure that Insight Real Estate B.V. receives the same amount as it would have received if no withholding had been necessary.
• Insight Real Estate B.V. may require that payments be made before commencing the services or part thereof, or their completion. When specifying payment against invoices, Insight Real Estate B.V. may take into account the nature and context of the services to be provided and the likely timing and amounts of the costs to be incurred.
• Insight Real Estate B.V. may suspend the delivery of services by means of a written notice to the client if an amount has not been paid to Insight Real Estate B.V. within the period stated in Article V.1, until all outstanding amounts have been paid in full in freely available funds.
• After completion of an assignment, Insight Real Estate B.V. is entitled to retain materials of the client that are still in its possession as long as amounts owed by the client remain outstanding.
• Insight Real Estate B.V. can request the client’s file from credit registration agencies in order to verify the client’s identity and to assess whether the client can meet the payment obligations in connection with the assignment.
VI. Money from clients
• Insight Real Estate B.V. is “Regulated by RICS” and therefore handles money from clients in accordance with RICS rules and regulations. See also www.rics.org.
VII. Processing Personal Data
• To the extent that personal data is processed in the context of carrying out the work, this personal data will be processed in a proper and careful manner and in accordance with the General Data Protection Regulation.
• Technical and organisational measures will be taken to protect the personal data against loss or any other form of unlawful processing, taking into account the state of the art and the nature of the processing.
VIII. Client obligations
• The client will, as soon as reasonably practicable following a request, provide all information, assistance, approvals and consents that Insight Real Estate B.V. has reasonably requested with regard to the execution of the obligations in connection with the assignment. The client ensures that all information provided by or on behalf of the client is complete and accurate in all material respects and will notify Insight Real Estate B.V. as soon as possible if the client becomes aware that information is incomplete, incorrect or misleading.
• The client confirms that Insight Real Estate B.V.:
• is entitled to rely on the completeness, accuracy, adequacy and consistency of the information provided by or on behalf of the client; and
• is not liable for any inaccuracies contained in the information provided by or on behalf of the client, unless stated otherwise.
• All assessments made by Insight Real Estate B.V. are based on the level and amount of information provided by the client. The client is not entitled to assume that Insight Real Estate B.V. has carried out an inspection. The client must take this into account with regard to all figures, calculations and advice.
• The client will determine the accuracy and completeness of the data on objects drawn up by Insight Real Estate B.V. and confirm that they are not misleading. The client undertakes to inform Insight Real Estate B.V. immediately if data is or becomes incorrect or incomplete.
• The client agrees that Insight Real Estate B.V. may announce that it provides or has provided services to the client and that it uses the client’s name in publicity. However, Insight Real Estate B.V. does not publish information about any proposed or actual transactions (except those that are public) without prior permission, which will not be unreasonably withheld or delayed.
• Both before and after termination of the assignment, the client will maintain the confidentiality of:
• all information received by Insight Real Estate B.V. regarding the methodologies and/or technologies used by Insight Real Estate B.V. in the provision of the services;
• the details of the conditions under which Insight Real Estate B.V. provides the services; and
• all other information relating to the business activities of Insight Real Estate B.V. that is not publicly available.
X. Quality of service
• In performing the services, Insight Real Estate B.V. will exercise reasonable care and skill that can generally be expected from a competent provider of services that is comparable in terms of size, nature and complexity of the services.
• If the client is dissatisfied with the delivery of the services by Insight Real Estate B.V., a complaint must first be submitted to the Insight Real Estate B.V. signatory of the order confirmation in accordance with the provisions of Insight Real Estate B.V.’s complaints procedure that was in place at the time of the complaint.
At the request of the client, Insight Real Estate B.V. will provide the client with a copy of the complaints procedure.
• No implied conditions apply under and/or in connection with the assignment, and no other express warranties are given. All such terms are expressly excluded to the fullest extent permitted by applicable law.
XI. Dutch law, liability and insurance
• Dutch law applies to the agreement between the client and Insight Real Estate B.V. All disputes between the client and Insight Real Estate B.V. arising from the agreements concluded between them, including disputes regarding fees, costs and the fulfilment of the client’s payment obligations towards Insight Real Estate B.V., will be submitted exclusively to the competent Dutch court.
• In the event of an assignment between colleagues, Insight Real Estate B.V. is not liable for damage due to attributable shortcomings, tort or otherwise caused by a fellow estate agent during the execution of the assignment. In the event of an assignment between colleagues, these General Terms and Conditions prevail over those of the fellow estate agent.
• Any liability of Insight Real Estate B.V. arising out of or in connection with any assignment or breach or any event of non-performance, however fundamental (including through negligence or breach of statutory duty), in contract, tort or otherwise, will in all circumstances be limited to an amount equal to the lesser of the following amounts:
• 1 (one) time the fee paid or to be paid by or on behalf of the client in connection with the assignment; or
• the amount paid out by Insight Real Estate B.V.’s professional liability insurance.
• Any claim against Insight Real Estate B.V. for damages expires one (1) year after termination of the assignment.
XII. Termination of assignment
• Each contracting party may terminate the assignment without reason at any time by means of a written notice, whereby a notice period of at least thirty (30) days must be observed.
• Each party is entitled to terminate the assignment (for good cause) at any time by means of a written notice, either immediately or after such notice period, at the discretion of the party, if the other party:
• violates the assignment by violating the agreement and proper compliance is permanently impossible;
• commits a remediable breach of the agreement within the assignment and fails to remedy this breach within a period of thirty (30) days after service of notice of the breach with the request for rectification (or, after rectification thereof, commits a similar breach within the next (30) days); or
• ceases or threatens to cease business activities, is unable to pay its debts within the meaning of Dutch bankruptcy law, a director, collector, bankruptcy liquidator or manager is appointed over the assets or part of them, enters into an arrangement with creditors in general or a judgement has been made or a decision has been made that the organisation is being wound up (other than in furtherance of a resolution scheme for merger or reorganisation) or is undergoing a similar or equivalent process in any jurisdiction which may or may not cause harm to the reputation; or
• causes potential damage to reputation.
• Insight Real Estate B.V. may terminate the assignment immediately by means of written notice if the client has not paid an invoice within a period of thirty (30) days after the date of the invoice.
• Upon termination of the assignment, the client will pay Insight Real Estate B.V. the following:
• fees for the services provided (on a pro rata basis taking into account the fees payable for completion of the assignment, the expected duration of the entire assignment and the services provided prior to termination, unless otherwise stated);
• any costs incurred for the execution of the assignment;
• in those cases where the right is exercised by the client, additional amounts stated in the order confirmation as due upon termination.
• If the client enters into an agreement directly or indirectly with a lead supplied by Insight Real Estate B.V. within six (6) months after termination – for whatever reason – of the assignment, the client owes Insight Real Estate B.V. a fee that would be due upon normal completion of the assignment.
• If a party, in good faith, exercises a right of termination, the first subsequent failure or refusal to perform all or any of the current obligations in connection with the assignment will not constitute a violation of the assignment (unless the right of termination arises from non-compliance).