General Terms and Conditions
Article 1 General
In these general terms and conditions, the following terms are defined as stated below:
1. Client: the party commissioning the assignment.
2. Contracted party: J. Bakker Holding B.V., trading under the name JBH Property Investments Finance & Consulting, established in The Hague (the Netherlands), registered with the Chamber of Commerce and Industry in The Hague under file number 27120450.
Article 2 Applicability
1. These general terms and conditions apply to the legal relationship between the contracted party and the client, notwithstanding alterations to these terms and conditions that need be confirmed by both parties explicitly and in writing.
Article 3 Formation of the agreement
1. The agreement shall come about after the confirmation of the instruction has been signed by the contracted party and the client, and after has been returned to and received by the contracted party. As long as the confirmation has not been received by the contracted party, the latter remains entitled to use his capacity elsewhere. The confirmation is based upon the information the client has shared with the contracted party at that time. The confirmation shall represent the agreement correctly and entirely.
2. The agreement is entered into for an indefinite period of time unless the substance, nature or purport of the project stipulates that it has been entered into for a fixed term.
3. All services delivered by the contracted party shall be performed to the best of his knowledge and ability, and in accordance with good professional practice.
Article 4 Information supplied by the client
1. The client shall supply all the information and documents the contracted party requires in order to perform the granted work correctly, on time and in the form and manner requested by the client.
2. The client shall notify the contracted party forthwith about any facts or circumstances that might be relevant to the implementation of the work.
3. The client guarantees the correctness, completeness and reliability of the information and documents supplied to the contracted party, even if these are provided by third parties, insofar the nature of the project does not stipulate otherwise.
4. Upon the client’s request, the supplied original documents with an official status (e.g. notarial deeds, court decisions and governmental licenses) shall be returned to the client.
5. Any additional costs and additional fees due to the delayed implementation of the assignment since the requested information and documents were not supplied, were not supplied on time or not properly, shall be borne by the client.
Article 5 Implementation of the assignment
1. The contracted party stipulates the manner in which the assignment is to be performed and by which person(s), however with due consideration of the requirements expressed by the client.
2. The contracted party may only perform more work and charge the client for it, provided the client has given his consent in advance. This consent requirement does not apply if implementation of more work is among the contracted party’s duty of due care.
3. If the client wishes to engage third parties in performing the assignment, he may only do so after reaching an agreement with the contracted party. The stipulation of the previous sentence applies mutatis mutandis to the contracted party.
Article 6 Secrecy
1. In the event of a statutory or professional duty to disclose, then the contracted party shall maintain secrecy towards third parties.
2. Notwithstanding the client’s consent, the contracted party may not use the information disclosed to him by the client for any purpose not being the original purpose. Nevertheless, an exception shall be made in case the contracted party acts on its ow in disciplinary, civil or criminal proceedings in which these documents might be of importance.
3. Unless the contracted party has given his prior written consent, the client shall not disclose the contents of reports, advisory documents or any other (written) statements by the contracted party that were not drawn up or made with the intention of sharing the information contained therein with third parties. The client is also to make sure third parties cannot access the contents referred to in the previous sentence.
4. By virtue of this article, the contracted party shall impose his obligations upon third parties engaged by him.
Article 7 Intellectual property
1. The contracted party reserves all rights regarding products of the mind which he uses/develops or has used/ developed in the context of the implementation of the client’s assignment, insofar these are legally determined.
2. The client is explicitly forbidden to reproduce, disclose, exploit those products, including computer programs, system designs, working method, advice, (model) contracts and other intellectual products of the contracted party, all in the broadest sense of the word, whether or not third parties are engaged, unless these products are explicitly (such being confirmed in writing) intended for reproduction, disclosure and/or exploitation. Hence, disclosure is only allowed with the contracted party’s consent. Obviously, the client may copy the documents for use within his own organisation, insofar such is appropriate for the purpose of the assignment. If the assignment is cancelled prematurely, then the foregoing shall apply mutatis mutandis.
3. The client shall not make supporting means of these products available to third parties, for any other purposes than to gain an expert opinion on the work of the contracted party.
Article 8 Fee
1 If after the formation of the agreement, however before the assignment has entirely been implemented, wages and/or prices change, then the contracted party may adapt the agreed fee accordingly, unless the client and the contracted party have agreed otherwise.
2. The contracted party’s fee, if necessary plus disbursements and invoices of third parties engaged, shall be charged to the client on a monthly, quarterly or annual basis after completing the work, unless the client and the contracted party have agreed otherwise. Sales tax shall be invoiced for all amounts the client is indebted to the contracted party.
Article 9 Payments
1. Payments by the client must be made without deduction, discount or settlement of debts and within the agreed deadlines, within thirty days of the invoice date. Payment are to be made in euros by means of a transfer in favour of a bank account indicated by the contracted party. Any objections against the amounts invoiced do not suspend the payment obligation.
2. If the client fails to make the payments within the period referred to under 9.1, then after ordering the client at least once to make the payment, the contracted party may charge statutory interest until full payment has been made, without any further notice being required and without prejudice to the contracted party’s other rights.
3. All reasonable judicial and extrajudicial (collection) expenses the contracted party has incurred as a result of the client’s failure to meet his payment obligation, shall be borne by the client.
4. If the client’s financial position or payment history requires as such according to the contracted party, the latter may request the client to furnish (additional) security forthwith in a form stipulated by the contracted party and/or pay an advance. If the client fails to furnish this requested security then the contracted party, without prejudice to his other rights, may suspend the further execution of the agreement without delay and all amounts the client is indebted to the contracted party, for whatever reason, shall be payable forthwith.
5. In the event of a joint instruction then the clients, insofar work has been performed for these joint clients, are jointly and severally liable to pay the invoice.
Article 10 Complaints
1. Complaints concerning the work performed and/or the invoiced amount must be submitted to the contracted party in writing and within 30 day of the shipment date of the documents about which the client is complaining, and/or within 30 days after discovering the defect, provided the client is able to demonstrate that he could not reasonably have discovered the defect any sooner.
2. Complaints such as those referred to in the previous paragraph, do not suspend the client’s payment obligation.
3. In the event of a justified complaint, the contracted party may choose to adapt the charged fee, improve or redo the rejected work at no cost or cease to perform the work proportionally while refunding the fee already paid by the client.
Article 11 Delivery and execution time limit
1. If the client is indebted an advance payment or in case he must supply the information and/or materials required for the work involved, then the time limit in which the work is to be completed shall only commence after the client has made the full payment and/or has supplied all the information and/or materials required.
2. Since the duration of the assignment can be affected by a number of factors, such as the quality of the information the client has supplied or the assistance rendered by the client, the time limits within which work is to be completed can only be regarded as strict deadlines in case the parties have explicitly agreed as such.
3. Unless implementation is permanently impossible, the client may not cancel the agreement due to the delay, unless the contracted party is also unable to execute the agreement fully or partly within a reasonable period of time promised by him after the expiry of the agreed delivery period. In which case termination is permitted pursuant to Article 265 Book 6 of the Netherlands Civil Code.
Article 12 Notice
1. The client and the contracted party may terminate the agreement at all times.
2. Notice must be presented to the other party in writing.
3. If the client decides to terminate the agreement prematurely, then given the resulting and demonstrable professional loss, the contracted party shall be entitled to compensation by the client, unless termination ensues from facts and circumstances for which the contracted party is held responsible.
4. If the contracted party decides to terminate the agreement prematurely, then the client is entitled to the contracted party’s assistance in transferring the work to third parties, unless termination ensues from facts and circumstances for which the client is held responsible.
5. In the event of premature termination, the contracted party remains entitled to payment of the invoices for work already performed, which will be made available to the client subject to the provisional results of the work performed. Insofar the transfer of the work leaves the contracted party with additional costs, then these additional costs shall be borne by the client.
Article 13 Liability
1. The contracted party is to perform all work to the best of his knowledge and ability, exercising the due care one may expect from the contracted party. In the event that an error is made because the client has supplied incorrect or incomplete information, then the contracted party shall not be held liable for any resulting damage or loss.
2. If the client is able to prove that he has suffered damage or loss due to an error on the part of the contracted party that would have been avoided had the contracted party observed due care, then the contracted party shall be held liable for that damage or loss up to the fee the contracted party has received for his work within the assignment in question, unless in the case of intent or gross negligence on the part of the contracted party. In the event of consultancy/advisory work lasting longer than six months, this liability shall be limited to no more than the amount invoiced for the last six months.
3. The client indemnifies the contracted party against third-party claims owing to damage or loss caused because the client has provided the contracted party with incorrect or incomplete information, unless the client is able to demonstrate that the damage or loss is not related to imputable acts or omissions on his part or that it ensues from the intent or gross negligence on the part of the contracted party.
4. The limitation of liability laid down in the 2nd paragraph of this stipulation also applies to third parties the contracted party has engaged for implementation, who may consequently invoke this limitation of liability directly.
Article 14 Due date
Unless these general terms and conditions stipulate otherwise, the client’s rights of action and all other powers on any ground related to work performed by the contracted party shall expire in any event after one year after the date upon which the client became aware of or could reasonably have become aware of the existence of these rights and powers.
Article 15 Conversion
If and insofar as based on grounds of reasonability and fairness, or if the unreasonably incriminating character of any stipulation of these terms and conditions cannot be invoked, then the stipulation in question shall in any event be accorded a meaning and tenor so that it can be invoked nevertheless.
Article 16 Contradictory clauses
1. In the event that these general terms and conditions and the confirmation of the assignment contain conflicting conditions, then the conditions set in the confirmation of the assignment shall prevail at all times.
2. In the event that the client follows his own general terms and conditions, then these general terms and conditions of the contracted party shall prevail, even if the client’s terms and conditions may stipulate that the client’s terms and conditions prevail in that case.
Article 17 Takeover of staff
During implementation of the work, and within one year after completion of the work, none of the parties may employ persons the other party has engaged in the implementation of the work nor discuss employment with these persons, other than in consultation with the other party.
Article 18 Applicable law and choice of forum
1. All agreements between the client and the contracted party to which these general terms and conditions apply, are governed by Netherlands law.
2. All disputes ensuing from the agreements between the client and the contracted party to which these general terms and conditions apply, shall be settled by the court of competent jurisdiction in the region in which the contracted party is domiciled.
3. Notwithstanding the stipulation of the 2nd paragraph, the client and the contracted party may agree to submit disputes to a disputes tribunal.