GENERAL TERMS & CONDITIONS FOR MEDIATION FOR LET/RENT AND
BUYING/SELLING REAL ESTATE OF CONFORM MAKELAARS
I. GENERAL
TERMS & CONDITIONS
Article 1. Definitions
1.1 In these general terms & conditions are defined under:
General terms & conditions: the general terms & conditions of Conform Makelaars mentioned below, where effective as per April 19th 2011 and have been registered with the Chamber of Commerce of Rotterdam under number 234337214;
Conform Makelaars: Conform Vastgoed B.V., operating under the name Conform Makelaars, established in and with their principal place of business in Rotterdam, who by virtue of the Assignment of the Client for the provision of services or mediation accepts;
Client: the natural or legal person who has provided the Assignment to mediation to Conform Makelaars;
Consumer: Client, natural person, who does not perform acts in the pursuit of a profession of for a or company;
Assignment: the assignment to provision of Service given by the Client to Conform Makelaars;
Services: mediation relating to buying, selling, letting or renting of real estate, the appraisal of real estate and other services to be performed by Conform Makelaars;
Compensation: the price for the provision of services by Conform Makelaars including Brokerage;
Brokerage: the Compensation owed for mediation relating to mediation for buying, selling, renting or letting real estate; for which the mediation leads to an agreement concerning the real estate between the client and the counterparty;
VBO: the Vereniging Bemiddeling Onroerend goed (VBO) (property agents's association), located at (2289 CM) Rijswijk on the Braillelaan 6, being the Branch organisation to which Conform Makelaars is affiliated;
General Consumer Terms & Conditions VBO The General Terms & Conditions drawn up by the VBO in consultation with the Consumentenbond (Dutch Consumers Association) and the Vereniging Eigen Huis (Home-owners Association) in the framework of the Coordination Group Self-regulation of the Social Economic Council, which are applicable for the provision of services by Conform Makelaars for a Consumer.
Article 2. Applicability of the General Terms & Conditions / scope
2.1 The General Term & Conditions are applicable to every offer/quotation and every (assignment) agreement or legal relation between Conform Makelaars and the Client, unless expressly agreed otherwise in writing, or if the conditions in part II are applicable.
2.2 If any condition in the signed agreement(s) between Conform Makelaars and the Client is contrary to any condition of these general terms & conditions, the condition in the agreement(s) prevails.
2.3 If a Consumer provides an Assignment to Conform Makelaars the General Terms & Conditions of the VBO are applicable. In case of contradictions between the General Terms & Conditions of Conform Makelaars and the General Term & Conditions for Consumers VBO the latter prevails.
2.4 The General Terms & Conditions are also applicable to all stages prior to entering into an Agreement and in the Services and actions which Conform Makelaars performs prior signing the agreement. The General Terms & Conditions also remain effective after termination of the Assignment where applicable.
2.5 Between Conform Makelaars and the Client is clear that once the applicability of the General Terms & Conditions is contracted, these will also be fully applicable to any future transactions.
2.6 Conform Makelaars reserves the right to supplement and/or modify the General Terms & Conditions at any time.
2.7 Conform Makelaars is not held to the general terms & conditions who were declared applicable by the Client, unless Conform Makelaars has accepted these conditions explicitly and in writing. In case the Client has declared their own general terms & conditions to be applicable on the Order and/or other agreements the General Terms & Conditions of Conform Makelaars prevails, unless this is otherwise agreed in writing.
2.8 If one or more provisions of these General Terms & Conditions prove to be invalid or are declared void, the remaining provisions of these General Terms & Conditions will remain in force unaltered. Instead of the provisions that prove to be invalid of where declared void, provisions will be applicable which approach the original provisions as closely as possible with regards to the purpose and purport.
REALISATION
Article 3. Offer and acceptance
3.1 Every Assignment is supposed to be given to and accepted by Conform Makelaars, even if the express or implied intention of the Client is that the Assignment is performed by one or multiple people working for Conform Makelaars.
3.2 Any documents handed over from Conform Makelaars to the Client have no binding effect on Conform Makelaars.
3.3 Verbal commitments and agreements with employees of Conform Makelaars have no binding effect on Conform Makelaars, only if and for as far they have expressly been confirmed by Conform Makelaars.
3.4 If no agreement has been realised between the parties, the Client must return any documents which Conform Makelaars has provided them with for the offer, to Conform Makelaars upon the first request.
Article 4. Agreement realisation
4.1 The agreement is realised by and at the moment of sending an order confirmation to Conform Makelaars, or by the actual commencement of work by Conform Makelaars.
4.2 All additions, amendments and further agreements to the agreement are only valid if they have been agreed in writing, unless due to circumstances (required speed, etc) recording in writing is not possible. Parties will strive to have these additions, amendments and further agreements subsequently recorded in writing.
4.3 Conform Makelaars is always entitled to, prior to the delivery of services or continuation thereof, to require security for the client's prompt performance if his obligations.
SEARCH ASSIGNMENT
Article 5. Search assignment for a home
5.1 In case the Client provides Conform Makelaars with a search assignment for a home, the Client is entitled the right to access the current rental offer of Conform Makelaars.
5.2 The search assignment to Conform Makelaars is no guarantee to find a (suitable) home.
5.3 A search assignment is accepted by Conform Makelaars if Conform Makelaars has received all requested data which was filled in completely and truthfully with the acceptance of the general terms & conditions.
5.4 Conform Makelaars has the right to end the search assignment immediately and without further notice or judicial intervention, of the Client does not adequately or fully fulfil one or more obligations towards Conform Makelaars, which includes the delivery of the correct data.
5.5 The Client must pay the agreed compensation for the work due to Conform Makelaars when despite an irrevocable offer of the Client and acceptance of the Client to enter into a rental agreement, be it the Client does not honour the rental agreement, be it though rejection by the Client due to circumstances not attributable to the Client.
EXECUTION
Article 6. Obligations of Conform Makelaars
6.1 The undertaking of Conform Makelaars is a commitment where Conform Makelaars will comply with the specific requirements of expertise which the service represents. All requirements which are defined by the Client to the Services must be specifically agreed with Conform Makelaars.
6.2 By an agreement of assignment to mediation we mean the assignment to deliver services related to mediation by Conform Makelaars in order to facilitate an agreement for the Client, as referred to in article 7:425 of the Dutch Civil Code, where at the least the specifications given by the Client are met.
6.3 Unless the parties otherwise specifically agree in writing, the Client and Conform Makelaars aim that Conform Makelaars will not be authorised by the client, in de sense of article 3:60 of the Dutch Civil Code, to perform legal acts in their name or that Conform Makelaars performs legal acts for the Client under a mandate and intended in article 7:414 of the Dutch Civil Code.
6.4 Conform Makelaars makes an effort to ensure the interests of the contracting parties. In any conflicting situations Conform Makelaars will hand back the assignment regarding one of the contracting parties.
6.5 The activities of Conform Makelaars do not include giving (legal) advice to the parties involved. Communication of Conform Makelaars can never be interpreted as (legal) advice.
6.6 Insofar as the proper execution of the Assignment requires, Conform Makelaars reserves the right to have certain Services performed by a third party. The applicability of article 7:404 of the Dutch Civil Code and article 7:407 section 2 CC which implies a joint and several liability when several people have received the Assignment is not applicable.
6.7 Conform Makelaars will regularly keep the Client informed of the progress. If Conform Makelaars has received payments for the benefit or paid amounts charged against the expense of the Client, they will report this.
Article 7. Obligations of the Client
7.1 Client will supply all information and documents required for the execution of the agreement in a timely manner to Conform Makelaars. Client guarantees the accurateness of this information and documents. If Client does not fulfil these obligations in a timely manner, Conform Makelaars reserves the right to suspend the execution of the agreement and/or charge the Client additional cost according to the usual rates.
7.2 The Client will refrain from all activities which may interfere with the Assignment to Conform Makelaars and/or may impede Conform Makelaars in the execution of the Assignment.
DURATION
Article 8. Duration and completion
8.1 Unless both parties have otherwise agreed the Assignment is valid for an indefinite period. 8.2 The Assignment will end upon:
(a) fulfilment of the Assignment by Conform Makelaars;
(b) cancellation of the Assignment by the Client;
(c) termination by one the parties (article 9 Termination).
8.3 Conform Makelaars has fulfilled the Assignment mentioned in article 8 section 2 under a, when the agreed activity has been delivered or – in the case of mediation by Conform Makelaars - the proposed contract between the parties was created as a result of the Service supplied by them.
8.4 An Assignment can any time be cancelled by the Client, respecting the notice period of 4 weeks. Cancellation of an Assignment can only be performed in writing.
8.5 Without any effect on the obligation of the Client to pay the fee for the work and charges of Conform Makelaars, the parties are not entitled to any claim of compensation, unless this is agreement is terminated based on article 9.
Article 9. Termination of the agreement
9.1 Each of the parties can terminate the agreement if the counter party – after the period of 14 days set forth in the written notice of 14 days has expired – exhibits shortcomings in fulfilment of this agreement.
9.2 In addition Conform Makelaars is authorised to terminate the agreement immediately and without notice and without legal intervention by written notice and with immediate effect, either wholly or partially:
(a) in case of bankruptcy, (temporary) moratorium, a private agreement with creditors, or the declaration applicable to the debt rescheduling arrangement for natural persons;
(b) if his company is liquidated or terminated other than for the reconstruction or merger of companies; or
(c) if in the opinion of Conform Makelaars there is a serious distortion of the relationship between Conform Makelaars and the Client;
(d) if the Client becomes seriously compromised commercially;
(e) if the Client settles outside of the Netherlands and this causes insurmountable problems for Conform Makelaars;
(f) if it appears the Client has supplied Conform Makelaars with incorrect information upon entering the agreement, which are such that if Conform Makelaars would have been supplied with this information, the agreement would not have been entered upon, or not under the same conditions;
(g) if there are other circumstances which according to Conform Makelaars object to continuation of the agreement.
9.3 Conform Makelaars will never be obliged to pay any compensation due to this termination. All claims of Conform Makelaars towards the client will then be immediately due and payable.
FEES AND PAYMENT
Article 10. Fees; expenses
10.1 The fee(s) mentioned in the order confirmation for the activities (het wages as intended in article 7:405 or article 7:427 of the Dutch Civil Code) include the compensation for the expenses made by Conform Makelaars in relation to the Agreement, unless stated otherwise in the order confirmation.
10.2 The Client will always have to pay the Fee to Conform Makelaars regardless of the agreements made between the contact parties in relation to the cost of the transaction in question.
10.3 The Client must pay the full Fee including the agreed Brokerage if during the term of the contact, including the agreed Brokerage owed if during the term of the Agreement the Client and a third party sign an (rental) agreement, even if this agreement is not attributable to the Services provided by Conform Makelaars, unless otherwise agreed in the agreement of the assignment.
10.4 The Client owes the full Fee including the agreed Brokerage if the agreement with a third party is signed after the Agreement between Conform Makelaars and the Client (by notice or other) has ended, but the agreement with a third party is the result of the Services provided by Conform Makelaars and/or because the Client has entered into negotiations with third parties without consultation of Conform Makelaars during the term of the agreement with the purpose of entering into an agreement.
10.5 If between the Client who has given the Assignment to Conform Makelaars and a third party an agreement is signed after termination of the Assignment, then this assignment is deemed to have been the result of mediation by Conform Makelaars, unless the Client can proof otherwise. and the Client must pay the full Fee including the agreed Brokerage, unless the law would object to this.
Article 11. Payment
11.1 If an invoice is not paid on the due date stated on the invoice, a contractual interest at the statutory (commercial) interest rate plus 1% is due over the invoice amount from the due date. If after the first notice the invoice is not paid, Conform Makelaars reserves the right to claim extrajudicial collection costs from the Client, amounting to 15% of the invoice amount with a minimum of € 250.-.
11.2 As long as the invoice remains unpaid, Conform Makelaars has the right to suspend the activities for the Client after informing the Client thereof. Conform Makelaars will not be held responsible of any damages as a result of the suspension.
Advertising
Article 12. Defects, complaint deadlines
12.1 Complaints on declarations should be submitted in writing within 5 working days of receiving the invoice.
12.2 Complaints about the execution of the agreement should be submitted in writing within a reasonable period (article 6:89 Dutch Civil Code) by the Client to Conform Makelaars in accordance with the Complaints procedure of Conform Makelaars. This does however not suspend the payment obligation of the Client.
SHORTCOMINGS
Article 13. Liability, indemnities and exclusions
13.1 The liability of Conform Makelaars towards the Client is limited to the maximum amount which is paid out by the insurance company of Conform Makelaars. Conform Makelaars will supply information about her business liability insurance upon request of the Client.
13.2 Conform Makelaars is not responsible for any damage which are covered by any insurance taken out by the Client.
13.3 Liability of Conform Makelaars for indirect damages, also including consequential damages, lost profits, lost savings and damage due to business interruption is excluded. For damages resulting from an occurrence which can be (direct or indirectly) linked to an act of terrorism or malevolent contamination Conform Makelaars can never be held responsible.
13.4 Conform Makelaars is in no way liable for the consequences of the inaccuracy of the information provided by or on behalf the Client.
13.5 Conform Makelaars is not liable for damages which are inevitable with the correct execution of the Services, or the result of urgency required by the circumstances. Additionally Conform Makelaars is not liable for damages as a result of working in a manner known to the Client and to which they have made no objections.
13.6 Client shall indemnify Conform Makelaars from claims of liability of third parties vis-à-vis Conform Makelaars.
Article 14. Expiry date
14.1 Conform Makelaars is not liable for damages if the Client has not deemed Conform Makelaars responsible for the damage incident by registered mail within 5 working days after discovery of damage incident, and Conform Makelaars, because Client did not report this within the expiry date, is limited in their options to start an investigation into the damages and causes thereof.
14.2 All claims of Client expire if they are not motivated in writing by registered mail to Conform Makelaars within one year after Client or the third party was informed of or could reasonably be informed of the facts on which he bases his claims.
Article 15. Force majeure / non-attributable shortcoming
15.1 Neither of the parties is obliged to perform any obligation if prevented from doing so due to force majeure
15.2 The above does not affect the obligations of the parties to try and avoid and prevent any situations of force majeure where possible.
15.3 In case of force majeure Conform Makelaars is authorized to suspend the execution of the agreement without judicial intervention, or to terminate the agreement with immediate effect, without any obligation to pay damages for Conform Makelaars.
15.4 If Conform Makelaars has already met part of their obligations when the force majeure starts, or can only partially fulfil their obligations they reserve the rights to separately invoice the performed or executable part.
SPECIAL CONDITIONS
Article 16. Privacy
16.1 Conform Makelaars will adhere to the Dutch Data Protection Act when performing their activities.
Article 17. Intellectual property rights and confidentially
17.1 The intellectual property right on the documents supplied by Conform Makelaars, like reports, advice etcetera remain with Conform Makelaars. The related documents are exclusively destined to be used by Client and should not be reproduced, published, or disclosed to third parties without prior written permission of Conform Makelaars.
17.2 Both parties are bound to secrecy of all confidential information which they have obtained from each other or from another source under this agreement. Information is confidential if this is reported by one of the parties or arises from the nature of the information.
Article 18. Waiver and transfer of rights
18.1 Unless explicitly otherwise determined in the General Terms & Conditions any non-action by a party in case of default in respect of any provision of the agreement or the General Terms & Conditions or allowing or acquiescence of a deviation from any provision of the agreement or the General Terms & Conditions cannot be considered as waiver of rights.
18.2 For as far as these general provisions and/or agreement of the assignment is not otherwise determined, are described in these general provisions and/or the agreement of the assignment described rights and obligations are not transferable, unless with written permission of both parties.
APPLICABLE LAW AND DISPUTES
Article 19. Applicable law
19.1 The General Terms & Conditions, the agreement and all resulting agreements are governed by Dutch law.
Article 20. Settlement of disputes
20.1 All disputes, which may arise as a result of the Assignment and all further agreements resulting from this, will be settled by the competent court in Rotterdam, unless mandatory rules dictate otherwise.
FINAL CLAUSES
Article 21. Location of General Terms & Condition
21.1 These General Terms & Conditions are filed with the Chamber of Commerce in Rotterdam.
Article 22. Language
22.1 Where these General Terms & Conditions have been provided in a language other than Dutch, the Dutch text shall be decisive.
II. CONDITIONS RELATED TO MEDIATION FOR LETTING/RENTING OF REAL ESTATE
In addition to chapter 1 of the General Terms & Conditions the following provision apply to mediation for letting/renting of real estate:
Article 23. Definitions
23.1 In Chapter II the General Terms & Conditions are defined under:
Client: the (legal) entity who offers one or more objects via Conform Makelaars for letting of the objects.
Object: the offered real estate, being either living accommodation of business space;
Object Acceptation the confirmation of the cooperation between Client and Conform Makelaars as well as that the object on offer is included in the portfolio of Conform Makelaars and that the object will directly or indirectly be offered to house hunters of Conform Makelaars.
Candidate proposal: the document in which the candidate tenant is introduced for approval to the Client. The Candidate proposal contains the (essential) details of the rent, such as background declaration of the prospective tenant, rental period and the rent price as well as the applicable conditions after acceptation of the prospective tenant;
Costs costs made by Conform Makelaars to publicize the availability of the offered Object, such as cost of advertising, costs related to including the Object in de the shop window of the office of Conform Makelaars and fitting the Object with one or more posters and of V-signs, etc.. Additionally these costs also serve to cover the inclusion of the Object on the internet site of Conform Makelaars amongst others.
Article 24. Offering an Object
24.1 The Client should be entitled to let the Object and sign the rental agreement and is responsible and accountable thereto.
24.2 Prior to offering the Object for rent the Client should - where applicable - have obtained permission and/or have given notice to and/or have received notice from:
(a) - the home owner or the administrator, in case of sublease;
(b) - the concerned municipal authority;
(c) - the Dutch home owners association;
(d) - the holder(s) of the mortgage;
(e) - the insurance compan(y/ies);
(f) - relevant laws - and regulations. Client is responsible and accountable thereto.
24.3 Client agrees that:
(a) Conform Makelaars will publicize the availability of the Object in a manner selected by them; and
(b) can make no claim on specific marketing activities, other than placing the Object on the internet site of Conform Makelaars.
24.4 Offering via Conform Makelaars forms no guarantee to find a (suitable) tenant.
24.5 The liability of Conform Makelaars is explicitly excluded for damages as a result of the provision nature of the rental agreement (early notice, etc.).
24.6 Conform Makelaars is authorised to stop offering the object, when circumstances occur which, according to Conform Makelaars, lead to a situation where one can no longer expect to have to offer the Object. No restitution will occur of any cost already paid by the Client.
24.7 Conform Makelaars explicitly refers Client to the provided information regarding the working method of Conform Makelaars as well as the information concerning letting and renting of an accommodation. The provided information is only informative and does not in any way constitute (legal) advice. Conform Makelaars advices the Client to seek independent (legal) advice where appropriate.
Article 25. Fee and charges
25.1 Conform Makelaars will invoice Client an amount to cover the Costs made by Conform Makelaars for Client. The Object Acceptation will contain confirmation of the Costs with agreed with the Client. The amounts mentioned in the Object Acceptation are excluding VAT, unless stated otherwise.
25.2 Client irrevocably gives consent to settle the agreed Fee including Brokerage and the Costs, if not already separately invoices and paid, with the first rental payments and/or the deposit in relation to the Object, if these are not paid by the tenant via the office of Conform Makelaars. Conform Makelaars will then transfer the remaining amount within a target period of 10 working days.
25.3 If no settlement conform the previous article is possible or takes place, Conform Makelaars will invoice the Fee including Brokerage and Costs separately to the Client. Article 11 of the General Terms & Conditions is fully applicable to this.
Article 26. Cancellation by the Client
26.1 If Client, after signing the order confirmation or after having approved a (perspective) tenant, for reasons which are not attributable to Conform Makelaars, no longer wishes to offer or let the offered Object, Client must pay compensation to Conform Makelaars for the damages suffered. Abovementioned compensation will always include the forgone Fee and Cost of Conform Makelaars (and those of the perspective tenant). Additionally Client must indemnify Conform Makelaars for any damages suffered by the perspective tenant.
Article 27. Indemnification
27.1 Unless parties otherwise agree in writing, Conform Makelaars does not mediate for Client in relation to the content en conditions of rental agreements to be close.
27.2 Client is specifically informed of the possibility of the tenant to appeal to the review provision as described in article 7:249 of the Dutch Civil Code and the terms therein. Conform Makelaars explicitly accepts no liability in this regard.
Article 28. Applicability
28.1 In any provision in the Object Acceptation and/or Candidate proposal and/or resulting additional agreement(s) are in violation with any provision of these conditions, the provision in the Object Acceptation and/or Candidate proposal and/or resulting additional agreement(s) prevails.
General Conditions Conform Makelaars
