The following terms are defined in these general conditions as indicated below.
1.1 Assignment: an agreement for an assignment in the sense of Article 7:400 et seq. of the Civil Code, in which one party, REDEPT (the party carrying out the assignment), undertakes to the other party, the client, to carry out consultancy activities for the client (or have them carried out). The agreement is laid down in writing and contains (inter alia) a description of the activities to be carried out.
1.2 Real Estate Advisory Assignment: the assignment to provide a contribution to determining, analysing and solving questions of management, policy, organisation and operation for a client, which arise in and/or with regard to an organisation and/or between organisations in the area of real estate as well as executing these assignments.
1.3 Client: the natural person or legal person who has concluded an agreement as the other party with REDEPT to carry out a Real Estate Advisory Assignment for an organisation (or have it carried out).
1.4 REDEPT B.V.: the legal entity carrying out the assignment referred to in 1.2 or having issued a prior quotation or offer.
1.5 Executor of the assignment: the natural person or legal person who is charged with carrying out the assignment on behalf of REDEPT.
1.6 Parties: the client and REDEPT.
2.1 All the assignments are exclusively accepted and carried out by REDEPT setting aside Articles 7:404 and 7:407, paragraph 2 of the Civil Code.
2.2 All the clauses in these general conditions have also been made on behalf of all those who are employed by REDEPT.
2.3 All the activities which are carried out by the executors of the assignment in the context of an assignment are deemed to be activities by or on behalf of REDEPT.
3.1 All the clauses in these general conditions apply to all the offers, activities, tenders made by REDEPT, and to all the agreements for Real Estate Advisory Assignments, related to carrying out activities for the client, including all the agreements arising from this or related to this, between REDEPT and the client or their legal successors respectively.
3.2 The Rules of Conduct of the Royal Institution of Chartered Surveyors (RICS) are an integral part of the agreement. The client declares that it will always wholly respect the obligations arising for REDEPT from the Rules of Conduct. The (complete) Rules of Conduct may be consulted on the website www.rics.org/rulesofconduct.
3.3 It is possible to deviate from these general conditions only on the basis of an agreement in writing. The applicability of the client’s possible procurement or other conditions is expressly excluded.
3.4 If any clause in these general conditions or in the agreement is null and void, the remainder of the agreement continues to apply and the clause concerned will be replaced on the basis of consultation between the parties by a clause which is as similar as possible to the scope of the original clause. Should any ambiguity exist regarding the explanation of one or more of these general conditions, then the explanation will be deemed to be on the basis of the ‘spirit’ of these conditions. Should a situation arise between parties which is not foreseen in these general conditions, then this situation must be judged according to the spirit of these general conditions.
3.5 REDEPT is competent to make changes to these conditions. The changes enter into effect at the time that it indicated for entering into effect. The above-mentioned changes do not have an influence on the assignments carried out during the entry into effect, unless the parties agree otherwise.
4.1 REDEPT is responsible for the integrity of its activities, must act with expertise in relation to the assignment and the client, must guarantee his professional and client-related independence, avoid other interests from those of the assignment itself from playing a role in the assignment and undertakes the obligation to talk to the client regarding his conduct if it does not conduct itself as a good client.
4.2 The client is open in the preliminary discussions with REDEPT about the competition by other real estate advisors, the criteria which apply for selection and the period in which the choice is made.
4.3 The client has a responsible assignment policy.
4.4 The client has a duty of care in providing information which is required, whether requested or not, in order to carry out the assignment well and effectively.
4.5 The client acts as a reliable partner, by promptly and wholly fulfilling agreements, including the payment of invoices.
5.1 The agreement for the assignment is drawn up at the moment that the agreement for the assignment signed by the parties, or the confirmation of the assignment and the necessary data and information on the basis of the law and regulations have been received by the person carrying out the assignment.
5.2 The agreement for the assignment is the agreement of the wishes of the client and REDEPT drawn up in writing which, where applicable, contains the following agreements on the content and conditions of execution of the contract;
6.1 The client is responsible for ensuring that all the data and information which REDEPT indicates are necessary or which the client should reasonably understand are necessary for the execution of the agreement, are provided promptly and in the form and in the way as requested, to REDEPT.
6.2 If the data and information required for the execution of the agreement have not been provided promptly or correctly to REDEPT, REDEPT has the right to suspend the execution of the agreement or to charge the extra costs arising from the delay to the client in accordance with the customary rates.
6.3 The client is obliged to inform REDEPT immediately of facts and circumstances which could be important in connection with the execution of the assignment.
6.4 The client is responsible for the accuracy, completeness and reliability of the data and information provided by it or in its name to REDEPT.
6.5 If REDEPT requests this, the client will make available employees of his own organisation free of charge, who are (will be) involved in the activities of REDEPT.
6.6 If REDEPT requests this, the client shall make available a workplace and the (office) facilities to REDEPT free of charge, which could be necessary to be able to carry out an assignment on location.
7.1 REDEPT shall observe the rules of due diligence and confidentiality with regard to third parties who are not involved in the execution of the assignment, regarding all the confidential data or information that is sensitive to competition of the client, which has come to his knowledge in the context of the assignment, unless there is a legal or professional duty for REDEPT to reveal this, REDEPT has to defend himself before the (disciplinary) court, the client has discharged REDEPT from the obligation of confidentiality, or the information is available through public sources. REDEPT must take all the precautionary measures necessary in the context of the assignment to protect the client’s interests.
7.2 Without the consent of REDEPT, the client may not make any statement to third parties regarding the approach, procedure, content of the advice or opinions of REDEPT, or make his report or any other written or unwritten material available or publicise it in any other way, unless there is a legal or professional obligation for the client to make it public.
8.1 Models, techniques, instruments, including software, and other intellectual products which have been used for the execution of the assignment or are included in the advice or result of the examination, are and continue to be the property of REDEPT insofar as they are not already owned by third parties. Therefore their publication, further use or further dissemination can take place only after obtaining the consent of REDEPT, without prejudice to the provision of 5.2.
8.2 The client has the right to reproduce documents for use in its own organisation insofar as this is appropriate with regard to the aim of the assignment. In the event of the interim termination of the assignment, the above applies correspondingly.
8.3 REDEPT has the right to use the increased knowledge on its part by having carried out an assignment for other purposes insofar as no confidential information as referred to in 7.1 is revealed to third parties.
9.1 The assignment is carried out by or on behalf of REDEPT in accordance with its best insight and ability and in accordance with the normal demands of professionalism and due diligence.
9.2 The obligation referred to in 9.1 has the character of a best endeavours obligation because achieving the intended result cannot be guaranteed unless REDEPT and the client explicitly conclude an agreement in writing about the result to be achieved before accepting the assignment and if it has been agreed between the parties that the description of the result to be achieved can only be singularly interpreted and the result can be objectively determined (results obligation). If the results obligation in writing does not comply with the above cumulative requirements, the client cannot appeal to the results obligation of REDEPT. The same applies if the result is not achieved for reasons unrelated to the influence of REDEPT.
9.3 After consultation with the client, REDEPT can replace one or more personnel on the assignment. The change must not reduce the quality of the activities to be carried out in the context of the assignment or negatively influence the continuity of the assignment. A change in the personnel executing the assignment can also take place at the request of the client in consultation with REDEPT.
9.4 Involving or bringing in third parties in carrying out the assignment by the client or by REDEPT can only take place following mutual consultation.
9.5 The client accepts that the timing and costs of the assignment can be changed if the parties reach an interim agreement to change the approach, procedure or size of the assignment or to extend the advisory activities for the organisation arising therefrom.
9.6 If an interim change becomes necessary in the assignment or the execution of the assignment as a result of the activities of the client, REDEPT must make the necessary adaptations if the quality of the service requires this. If this sort of adaptation results in additional work, this must be confirmed as an additional assignment by the client. If the client does not confirm this within fourteen days after being requested to do so in writing, REDEPT has the right to immediately terminate the agreement without any legal intervention and without being obliged to pay the client any compensation for damages. REDEPT can refuse a request to change the agreement without being in default thereof if this could have qualitative and/or quantitative consequences for, for instance, the real estate advisory activities to be provided in that context.
9.7 Should the agreement be changed, or augmented, REDEPT has the right to commence execution thereof once approval has been given by the authorised person within REDEPT and the client has approved the price and other conditions for its execution including the timing to be determined under the change. Not or not immediately carrying out the changed agreement will not be considered a breach by REDEPT and is not a ground for the client to terminate or cancel the agreement.
9.8 Should the agreement be executed in phases, REDEPT can delay carrying out activities that belong to a subsequent phase until the client has given written approval for the results of the previous phase.
10.1 The duration of the assignment can be influenced by various factors outside the efforts of REDEPT, such as the quality of the information obtained by REDEPT and the cooperation which is provided. Therefore REDEPT cannot in such a situation specify exactly in advance how long the period required to carry out the assignment will be. For this reason the periods within which the activities must be completed are only fixed periods if this has been agreed in writing.
10.2 The assignment is concluded in a financial sense as soon as the final account has been approved by the client. The client must inform REDEPT of this within a period of thirty days after approving the final account. If the client does not respond within this period, the final account is deemed to have been approved.
11.1 The parties can unilaterally terminate the agreement pre- maturely if one of them considers that the execution of the assignment can no longer take place in accordance with the agreement on the assignment and any later additional agreements. The other party must be informed of this in writing, stating reasons. REDEPT or the client may only make use of the possibility of terminating the agreement prematurely if the completion of the assignment cannot reasonably be carried out as a result of the facts and circumstances which cannot be attributed to the influence of the party terminating the agreement or cannot be attributed to it. REDEPT retains the possibility to claim for the payment of the statement of expenses for activities carried out up to that time and the interim results of the activities carried out up to that time are provisionally made available to the client if possible. Insofar as this incurs, extra costs are charged for these.
11.2 In the case that one of the parties is declared bankrupt, requests a suspension of payments or ceases business activities, the other party has the right to terminate the assignment without observing a period of notice, while retaining rights.
11.3 REDEPT is entitled to dissolve the agreement should circumstances arise which are of such a nature that complying with the agreement becomes impossible or otherwise if circumstances arise which are of such a nature that unaltered maintenance of the agreement cannot reasonably be expected.
11.4 Should the agreement be dissolved REDEPT’s claims against the client will become due immediately. Should REDEPT suspend compliance with the obligations, REDEPT retains its claims in law and under the agreement. Should the dissolution be due to the fault of the client, REDEPT is entitled to the reimbursement of damages, including the costs thereby caused, direct and indirect.
12.1 REDEPT is not obliged to comply with any obligation towards the client should it prevented from doing so by a circumstance which is not attributable to its own fault but nevertheless is attributable to it due to the law or a legal transaction.
12.2 Under superior power in these general conditions is understood, apart from that which in the law and jurisprudence is included, all external causes, foreseen or unforeseen, over which REDEPT cannot exert any influence but whereby REDEPT is not in a position to fulfil its obligations. Strikes within REDEPT or third parties are included therein. REDEPT also has the right to claim superior power should the circumstances that prevent the (further) fulfilment of the agreement occur subsequent to the time that REDEPT should have fulfilled its agreement.
12.3 REDEPT can suspend the obligations arising out of the agreement during the period that the superior power continues. Should this period last longer than two months then either party is entitled to dissolve the agreement without any obligation to compensate damages to the other party.
12.4 Insofar as REDEPT has partially complied with its obligations arising out of the agreement at the time of the entrance of the superior power or will partially comply therewith and value can be attributed to, respectively, the part complied with and the part to be complied with, REDEPT is entitled to invoice these parts separately. The client is obliged to settle this invoice as if a separate agreement existed.
13.1 If other methods of calculating fees for Real Estate Advisory Assignments are used than the amount of work and costs devoted to the assignment, or the fee is a fixed sum, a clear description of this must be included in the agreement with the client. In that case REDEPT must ensure that this serves the interests of the client and that its own independence is guaranteed.
13.2 With regard to the rates and the estimates of costs based on these, the agreement explicitly states whether this includes the secretarial costs, travelling hours, travel and accommodation expenses and other costs related to the assignment. Insofar as these costs are not included, they can be calculated separately unless explicit agreements have been made on this in writing. An interim change in the level of the salaries and costs which means that REDEPT must adapt the rates or other above-mentioned reimbursements of costs will be charged to the client. The fee does not include any interest costs unless indicated otherwise in the agreement.
13.3 The fee for REDEPT, if necessary increased by advances and statements from third parties who have been contracted in, is charged monthly or after the conclusion of the Real Estate Advisory Assignment unless the client and REDEPT have made other agreements. The VAT is charged separately on all the amounts due to REDEPT by the client.
13.4 If the client wishes to have an examination carried out by a chartered accountant of the statement by REDEPT, it will cooperate with this. The costs of this type of examination are for the client.
14.1 The payment by the client must take place without a deduction, discount or settlement of debts, within the agreed periods, but in no case later than thirty days after the date of the invoice. Payment must be made by means of a transfer to a bank account indicated by REDEPT.
14.2 If the client has not paid within thirty days after the date of invoice, REDEPT has the right, after it has reminded the client at least once to make the payment, to charge the client the legal interest from the date of expiry up to the date of complete payment, without any further notification of default and without prejudice to the other rights of REDEPT.
14.3 Should the client default or make an oversight in the (timely) fulfilment of its obligations to REDEPT then all reasonable costs of obtaining satisfaction outside the law will be for the client. The non-legal costs will be calculated on the basis of that which is customary within Dutch debt collection practice, currently the calculation method according to the Rapport Voorwerk II. Should REDEPT however incur higher debt collection cost than were reasonably necessary, the actual costs will be able to be reclaimed. Equally, legal and warrant costs will be claimed from the client. The client will also be liable for interest over the due debt collection costs.
14.4 REDEPT is entitled to suspend fulfilment of its obligations or to dissolve the agreement should the client not completely, partially or on time fulfil its obligations arising out of the agreement or should REDEPT learn subsequent to entering into the agreement of circumstances which give good grounds to fear that the client will not comply with its obligations.
14.5 If the financial position or the payment behaviour of the client gives rise to this in the opinion of REDEPT, REDEPT has the right to request the client to immediately provide (additional) security in a form determined by REDEPT. If the client fails to provide the required security, REDEPT has the right, without prejudice to its other rights, to immediately suspend the remaining execution of the agreement, and everything which the client is due to REDEPT for any reason can be claimed immediately.
14.6 In the case of an assignment commissioned jointly, the clients are severally responsible for the payment of the invoiced sum irrespective of the name on the statement, insofar as the consultancy activities for the organisation have been carried out for the joint clients.
15.1 During the execution of the assignment or within one year after the termination of the assignment, none of the parties may employ personnel of the other party who are (were) involved in the assignment or in any other way have him employed for himself or another, except after consultation with the other party.
16.1 A complaint about activities carried out or an invoiced sum must be sent to REDEPT in writing within thirty days after sending the documents or the information about which the client is complaining, or if the client demonstrates that he could not have reasonably discovered the shortcoming earlier, within thirty days after the discovery of the shortcoming. Exceeding this period results in the expiry of all claims.
16.2 A complaint must be submitted in writing and must be addressed to the directors of REDEPT, also if the complaint has been made verbally, together with a complete substantiation and details in order that REDEPT can handle the complaint in a considered manner.
16.3 REDEPT will handle a complaint as soon as possible and will confirm receipt of the complaint within ten working days of receipt. Should REDEPT not react to or solve the complaint within 25 working days, REDEPT will inform the client of this in writing.
16.4 Should the client not be satisfied with the handling of the complaint, the parties shall – or the most diligent party shall – file a request for mediation with the NAI secretariat in accordance with the NAI Mediation Rules for the purposes of resolution of each and any dispute that has arisen or might arise further to the present agreement, or any further agreements resulting from the same, If such request fails to result in a comprehensive resolution of the dispute by execution of a settlement agreement as referred to in Article 7(A) of the NAI Mediation Rules, by means of an arbitral award on agreed terms as referred to in Article 8 of said Rules, or by means of a combination of both, the dispute – or at any rate any part thereof not resolved in any of the aforesaid manners – shall be resolved exclusively in accordance with the NAI Arbitration Rules.
16.5 A complaint does not suspend the client’s obligation for payment unless and insofar as REDEPT informs the client that it considers the complaint to be founded.
16.6 In the case of a justified complaint, REDEPT has the choice between adapting the sum of the invoice, improving the activities free of charge or carrying out the activities concerned again, or to partly or wholly not/no longer carry out the assignment.
17.1 REDEPT is not liable for the shortcomings in the execution of the assignment, unless these are the result of the failure of REDEPT to observe the due care, expertise or professionalism which can be expected in the context of the assignment concerned.
17.2 REDEPT is not liable for damages of whatever nature, which arise because REDEPT has used incorrect or incomplete information provided by or on behalf of the client.
17.3 The liability for the damage caused by the shortcomings is limited to the sum of the fee which REDEPT has received for its activities in the context of that assignment.
17.4 For assignments which last for a period longer than six months, there is a further restriction of the liability referred to here up to a maximum of the sum of the statement for the last six months.
17.5 REDEPT’s liability is in any case always limited to the amount of the payment of its insurer in each case.
17.6 REDEPT is never liable for indirect damages under which is included consequent damage, loss of profit, missed savings and damages due to commercial stagnation.
17.7 Any claims by the client in this sense must be submitted within one year after the discovery of the damage and if the client is in default in this respect, its rights are forfeited.
18.1 The client indemnifies REDEPT for possible claims from third parties that suffer damages in connection with the execution of the agreement and for which the cause is attributable to others than REDEPT. Should REDEPT be able to suffer claims of this nature from third parties then the client is obliged to support REDEPT both within and outside legal proceedings and without restriction do everything that may be expected from it in that case. Should the client remain in default in taking adequate measures then REDEPT is entitled, without informing the client of its default, to take measures itself. All costs and damages on the part of REDEPT and third parties that arise therefrom are integrally for the account and risk of the client.
19.1 Dutch law is applicable to every agreement between the client and REDEPT also should an assignment be carried out wholly or partly outside The Netherlands or if the party involved in the agreement is located outside The Netherlands. The application of the Vienna Sales Convention is excluded.
19.2 The judge in the registered location of REDEPT is entitled to be informed of disputes upon exclusion unless the law irrevocably specifies otherwise. Nevertheless, REDEPT has the right to present the dispute to the legally entitled judge.
19.3 Parties will only revert to the judge after they have carried out the utmost endeavours to solve a dispute between themselves.
19.4 In the case of deviations between the English and Dutch versions of these general conditions, the Dutch version will prevail.
20.1 REDEPT is regulated by the Royal Institution of Chartered Surveyors (RICS) and observes the rules of conduct of RICS. RICS regulation is responsible for ensuring that RICS members and/or RICS regulated firms comply with the demands of the RICS “Rules of Conduct”. These determine the professional, ethical and commercial norms that are to be expected from RICS members and/or firms. RICS Regulation enforces, assists and helps the members and firms to comply with the rules, regulations and ethical norms. RICS judges and investigates complaints and can, where required, take disciplinary measures in cases where the members and/or regulated firms do not comply with the norms that are expected of them. If the client considers that REDEPT is not observing the professional code of conduct of RICS, the client can submit this complaint RICS Regulations and the applicable rules of procedure apply. Further information over the complaints procedure can be found on the website www.rics.org/complaints.
21.1 These general conditions are deposited at the Chamber of Commerce Den Haag.