General conditions
Beauvastgoed Beheer B.V. (hierna: Beauvastgoed) is een besloten vennootschap opgericht naar Nederlands recht, statutair gevestigd te Alphen aan den Rijn en ingeschreven in het handelsregister onder nummer 84734876.
In these Terms and Conditions, the following definitions shall apply:
General Conditions
These General Conditions.
Management Agreement
The Agreement between Principal and Contractor, regarding the Management of Objects.
Object(s)
The complex(es) as defined in the (Annex to the) Agreement.
Client
Any party with whom Contractor enters into an Agreement, as well as the legal successors under general or special title of Client.
Contractor
Beauvastgoed.
Agreement
The assignment agreement between the Client and the Contractor, whereby the Contractor undertakes to perform work towards the Client, the Management Agreement.
Parties
Contractor and Client jointly.
Property Management
The administrative and/or technical and/or commercial management as specified in the Management Agreement.
2.1. The General Terms and Conditions apply to all (other) legal relationships between Contractor and Client concerning work performed or to be performed by Contractor for Client.
2.2. Deviations from these General Terms and Conditions shall only be valid if and insofar as they have been expressly agreed in writing between the parties. Insofar as such deviations have not taken place, the provisions of these General Terms and Conditions shall continue to apply in full.
3.1. An Agreement is only concluded if the parties agree on the work to be performed by the Contractor and the consideration payable by the Client in return. Upon the conclusion of the Agreement, that Agreement and these General Terms and Conditions will replace any previous agreements and associated General Terms and Conditions.
3.2. The Agreement can be terminated immediately, without further notice of default, by a party by registered letter, without prejudice to its right to claim damages, if the other party (including a company belonging to the group of which the party is part as well as a partner, whether or not a managing partner) is involved in or is the subject of a situation of death (including dissolution of a legal entity), cessation of business operations, offer of a settlement outside bankruptcy, conservatory and/or executory seizure of a substantial part of its assets or loss of the free disposal thereof, seizure of one or more of its goods, violation of the provisions of article 10 (confidentiality), damage to its reputation, conviction to commit fraud or (application for) suspension of payments, bankruptcy, receivership, administration or supervision.
Damage to reputation means the situation in which the reputation and/or integrity of one of the parties is damaged to such an extent that cooperation in further cooperation from the other party can no longer reasonably be required.
3.3. A party is obliged to immediately notify its counterparty in writing if a majority of its shares is transferred or the control over it otherwise changes, a legal merger or demerger of it has taken place or a substantial part of its assets is transferred to (a) third party (parties). If one of the situations mentioned in the previous sentence occurs, the other party has the right to terminate the Agreement within a reasonable period - no longer than three months - by registered letter.
3.4. An Agreement may furthermore be terminated by a party, provided after proper notice of default, if the other party fails to fulfill its obligations under the Agreement correctly, in a timely manner and/or in full and this non-performance reasonably justifies dissolution, all this without prejudice to the right of the party proceeding to dissolve to claim (additional) damages and without prejudice to the provisions of article 9, paragraph 1. In addition to the provisions of this paragraph, when a party proceeds to dissolve an Agreement on the basis of the provisions of the previous sentence, it may also, if the non-performance justifies this, proceed to dissolve any other Agreements existing between the parties, even if the obligations under that/those Agreement(s) are duly fulfilled, without prejudice to the right of the party proceeding to dissolve to claim (additional) damages and without prejudice to the provisions of Article 9, paragraph 1.
3.5. A Management Agreement ends if ownership of all Object(s) mentioned in the Management Agreement is transferred to a third party, including transfer of beneficial ownership, with effect from the date on which the legal/economic transfer takes place.
3.6. If ownership of part of the Objects mentioned in a Management Agreement is transferred to a third party, economic ownership transfer included here, the Management Agreement shall remain in force for the Objects not involved in the delivery.
3.7. Transfer of ownership to a third party does not include transfer to a party within the group to which the Client belongs. In that case, there will be a contract takeover, to which both the Contractor and the Client and the new owner must cooperate.
3.8. In the event of termination of an Agreement, the Contracted Party will be obliged, at the Client's first request, to transfer the documents - electronic or otherwise - that belong to the Client to the Client or to a third party designated by the Client, free of charge. The Client will then be obliged to report any inaccuracies and/or imperfections to the Contracted Party within a period of three months after receiving the documents. If there are any imperfections and/or inaccuracies, the Parties will make further arrangements in this respect. If, after expiry of the aforementioned term, the Principal still has questions regarding the work performed by the Contractor under the Agreement, the Contractor will make every effort to answer these questions to the best of its ability. The Contractor will be allowed to charge a fee in advance for its cooperation, if and insofar as this is reasonable, at the discretion of the Principal and the Contractor. In the absence of an agreement on the fee, the obligation to make every effort to answer those questions in question will lapse.
4.1. Amendments and supplements to provisions in the Agreement shall apply only if agreed in writing and shall apply only to the Agreement in question.
5.1. The Client will make all the information and resources required for the performance of the Agreement available to the Contracted Party in good time and in full, and the Client guarantees their accuracy. The transfer of the information necessary for the performance of the Agreement to the Contracted Party will take place at the start of the Agreement. The Client warrants that the confidentiality of transmissions via the Internet, e-mail and or other (telephone) networks is guaranteed to the extent that this can reasonably be required of him. Client also guarantees that, when processing and storing the data, he will observe all legal regulations.
5.2. The Client shall ensure the necessary availability, accessibility and continuity within its organization to the extent required by the Contractor in connection with the performance of its work.
6.1. The Contractor is obliged to perform the work arising from the Agreement to the best of its knowledge and ability, as a professional, proactive Contractor with sound knowledge of the market, in accordance with the requirements of good workmanship. Upon commencement of the Agreement, the Contractor will receive from the Principal all information and documents necessary for the performance of the Agreement. The Contractor then has a period of three months from receipt of the data in question to report any incompleteness and/or inaccuracies to the Principal. If there are any omissions and/or inaccuracies, the parties will make further arrangements in order to rectify them. The Contractor will treat the information it provides confidentially. The Contractor thereby guarantees that the confidentiality of transmissions via the Internet, e-mail and/or other (telephone) networks is safeguarded, insofar as this can reasonably be required of him. The Contractor also guarantees that, when processing and storing the data, it will comply with all legal regulations.
6.2. The Contractor shall perform all activities that can reasonably be considered part of normal Property Management and that are required to ensure that the Property Management complies at all times with the applicable laws and regulations, including the safety, environmental and administration requirements, without demanding additional consideration in return. If, after entering into the Management Agreement, changes occur within the legislation and regulations, which changes affect the obligation of Contractor mentioned in the previous sentence, Principal shall ensure, at its own expense and risk, that, if applicable, the relevant Object(s) are brought into compliance with the amended legislation and regulations. When Principal has fully complied with its obligation as mentioned in the previous sentence, Contractor's obligation as mentioned in the first sentence shall remain in full force. If, as a result of such amended laws and regulations, the work to be performed by the Contractor becomes structurally more onerous, the parties will consult on an adjustment of the fee agreed between them as described in Article 7.
6.3. The Contracted Party will be permitted to engage third parties in the performance of its work, provided that it ensures that these are professional parties. Contrary to the provisions of the previous sentence, the Contracted Party will not be permitted to engage third parties without the Client's consent if the work involved is the Contracted Party's own work to be performed under the Agreement. The Contractor is responsible and liable for third parties engaged by it.
6.4. Without prejudice to the provisions on this subject in the Contract, the Contractor is obliged, at the Principal's request, to allow inspection of the documents relating to the work arising from the Property Management, all this insofar as this is in keeping with normal Property Management and insofar as it can reasonably be required of the Contractor.
6.5. Contractor warrants that it is readily accessible and that, only in case of urgent technical failures, it is available 24 hours a day 7 days a week for questions and/or complaints from tenants of Object(s).
7.1. The Client will owe the Contracted Party a fee, to be specified in the Agreement, on account of the work to be performed by the Contracted Party. The fee is an amount exclusive of VAT and any other costs incurred by the Contracted Party and approved in advance by the Client.
7.2. The fees under the Management Agreement may be invoiced by Contractor to Client quarterly in advance.
7.3. Unless the parties have expressly agreed otherwise, costs incurred in the context of the Agreement - including travel and accommodation expenses and other out-of-pocket expenses as well as the costs of third parties engaged in the performance of the Agreement - shall not be included in the fee and shall be charged separately to the Client afterwards.
7.4. If ownership of a single Object of the Objects mentioned in a Management Agreement is transferred, the fee for Property Management for the remaining Objects shall be adjusted pro rata, as of the date of legal/economic delivery of the sold Object.
7.5. The Client will not owe the fee described in the first paragraph if the contract is taken over as a result of a transfer within the group to which the Client belongs, as referred to in Article 3.7. In that case, the Contractor may charge the Client a fee to be agreed upon for the additional work resulting from this.
8.1. Invoices must be paid within 30 calendar days of the invoice date, unless the provisions of Article 8.5, second sentence are at issue. Payment shall be made without compensation, setoff or suspension, for whatever reason, unless the provisions of Article 8.5, second sentence are at issue. Payment shall be made by transferring the amount owed by Client to a bank account specified by Contractor.
8.2. At the discretion of the Principal, in the case of a Management Agreement, payment may be made by deduction by the Contractor from the fee due to it from the Principal's bank account held by the Contractor for the purposes of Property Management.
8.3. If the invoice is not paid within 30 calendar days, the Client shall owe statutory commercial interest on the outstanding amount from the due date, with a minimum of EUR 175.
8.4. If the Client, after having been given notice of default by the Contractor for that purpose, has not paid the amount due as well as the interest due even after the expiry of the term of payment specified in the notice of default, the Client shall be in default and shall be obliged to reimburse the Contractor for all damages and costs, including, but not limited to, the costs referred to in Article 8.6.
8.5. Objections to the invoice must be notified to Contractor in writing and with good arguments within 15 calendar days after the invoice date. In the event that (part of) the invoice is disputed, Principal is not obliged to pay that part of the fee and/or costs on which there is no agreement between the parties. As far as the undisputed part is concerned, this must be paid in the manner and within the term described in Article 8.1.
8.6. All costs incurred to collect a claim against Client, including, but not limited to, the costs of legal assistance, both in and out of court, shall be borne entirely by Client.
9.1. If the Contractor is unable to fulfill its obligations to the Client due to a non-attributable failure, as defined in Article 6:75 of the Civil Code ("force majeure"), its obligations will be suspended for as long as the non-attributable condition continues. Client shall not owe any consideration during this period. Should such a situation continue for more than 10 working days, the parties will then discuss with each other whether the Agreement(s) will be terminated.
9.2. The Contractor shall notify the Client as soon as possible of such circumstance as shown in Article 9.1.
10.1. The parties undertake towards each other to maintain confidentiality with respect to third parties of all that becomes known to the parties in relation to the other party's company and/or business, except for information that is accessible to everyone and in the situations mentioned below. The confidentiality obligation also extends to information contained in reports, drawings, designs, documents and other data sources, which the parties make available to each other in the context of the Agreement. The parties will only process and/or use the information concerned in the context of the performance of the Agreement and will not disclose it to third parties, other than when this is necessary for the work to be performed under the Agreement and/or a party is forced to do so by a court ruling or disclosure is based on a legal obligation. The parties are also obliged to impose the provisions of this paragraph on third parties engaged by them in the performance of the provisions of the Agreement. Third parties are understood to include companies belonging to the group to which a party belongs.
10.2. The rights relating to all (intellectual) products used by the Contractor in the context of the Assignment - including analyses, models, overviews, software, techniques and the like - or which are the result of the work performed by the Contractor pursuant to the Assignment - including advice, reports, reports, plans and the like - are vested exclusively in the Contractor, to the extent that such rights do not (also) belong to third parties.
10.3. Without the prior written consent of Contractor, Client is not authorized to disclose or multiply the products referred to in Article 10.2, nor to use them for any other purpose or make them available to persons other than those for whom or for whom the products in question are intended. This prohibition also includes the express or tacit authorization of the aforementioned acts.
10.4. Notwithstanding the provisions of Article 10.3, Client is authorized to make the products referred to in Article 10.2 available to a third party to the extent required to obtain its expert opinion on the work performed by Contractor and/or the results thereof, or any part thereof, provided that:
(i) The posting takes place in the context of a dispute existing between Principal and Contractor about the performance of said work or about the results thereof, regarding which no solution has been reached between the parties within a reasonable time despite reasonable consultation;
(ii) The third party is a member of a professional organization established for the discipline to which the work in question belongs and, as such, is deemed sufficiently representative by the Contractor;
(iii) Client informs Contractor in advance of the identity of the third party to be engaged, the nature of the assignment to be given to it and indicates which products will be made available to it.
(iv) The Client shall impose on the relevant third party, in a deed signed by the third party, the confidentiality obligation referred to in Article 10.1.
11.1. A party shall be liable to the other party for all (therefore including indirect, delay and/or consequential) damage suffered by the other party as a result of or in connection with an incorrect, complete and/or timely performance of the provisions of the Agreement, unless the failure cannot be attributed to the party in question.
11.2. The liability of the Contractor to the Client for each damage event is limited to an amount equal to three times the (annual) compensation excluding VAT agreed between the Parties in an Agreement on an annual basis and is not limited by the provisions of article 11.4. In deviation from the provisions of the previous sentence, if the fixed compensation on an annual basis exceeds EUR 500,000 excluding VAT, the liability per damage event shall be limited to an amount of EUR 1,500,000. In all cases, a maximum annual liability of EUR 2,500,000 shall apply for all events of loss arising in one calendar year.
11.3. The Parties shall inform each other immediately in the event of damage and/or in the event of a liability claim by a third party, insofar as this relates to the provisions of the Contract and/or the underlying Object(s). In the event of theft, fire, vandalism, burglary and collision damage, Contractor is obliged, in consultation with Principal, to report this to the local police and to forward the official report drawn up by the police to Principal. The Contractor will charge the Principal for the extra work resulting from this by multiplying the number of hours spent on the relevant claim and settlement by the hourly rate for the relevant employee(s) within its organization, plus turnover tax. The Principal shall then be obliged to pay the relevant invoice sent by the Contractor in the manner described in Article 9.1.
11.4. The Contracted Party will be obliged, at its own expense and risk, to take out adequate liability insurance with an insurance company of good repute, in respect of the work to be performed by it under the Agreement, with cover of at least EUR 1,500,000 per claim event. At the Client's request, the Contractor will provide the Client with a copy of the relevant policy.
11.5. Principal is obliged, at his expense and risk, to take out adequate buildings and liability insurance for the Objects with a reputable insurance company and to pay the premiums promptly.
11.6. The Contractor guarantees that the relevant insurance will be maintained for at least 5 years after the date of termination of the Agreement.
11.7. If third parties, who may be engaged by the Contractor in the performance of the Agreement as a result of the provisions of Article 6.3, wish to limit their liability in connection with that work, the Contractor must obtain the Client's approval for this. If the Client does not grant approval and the Contractor engages that third party nevertheless, the limitation of liability cannot be held against the Client. If and to the extent that the third party in question is to be engaged at the request of the Client and, after consultation, the Client does not agree to the Contractor accepting such third-party limitations of liability on behalf of the Client, the Contractor shall be free to engage a third party who does not require such a limitation of liability.
11.8. If the Contractor engages third parties as referred to in Articles 6.3 and 11.7 on behalf of the Client, and acts as the Client with respect to that third party, the following provisions shall apply to that engagement agreement:
(i) Performance of the work shall be in accordance with the warranty provisions in force.
(ii) Materials used, hours worked, date of performance and hourly wages shall be itemized on the invoice or through a work order.
(iii) The work shall be performed in accordance with legal safety requirements.
(iv) Client has no third party work requirements, the work is covered by the business activities and requirements of third party and third party must have CAR insurance for claims for this work.
12.1. The parties are aware that in the relationship between them, care, social acceptability and integrity (honesty and integrity) are essential. Each of the parties, including any employees and third parties engaged by a party, guarantees that any conflict between personal and business activities must be avoided. If one of the parties is of the opinion that its compliance with this article is or becomes an issue, it shall notify the other party immediately. The parties shall then take such measures as are adequate and appropriate in the circumstances. A party guarantees that (a) third party/parties to be engaged by it - including any employees and third parties to be engaged by that third party/parties - will endorse and comply with the provisions of this article.
13.1. Contractor is authorized to amend these General Terms and Conditions. The General Terms and Conditions as amended by the Contracted Party will apply vis-à-vis the Client thirty (30) days after the Client has been informed of the amendment in writing, unless the Client informs the Contracted Party in writing within that period that it objects to the amendment. In the latter case, the Principal is authorized to terminate the Agreement by the time the amended General Terms and Conditions would become applicable to the Agreement, but only if the amendment involves a substantial increase in the Principal's obligations under the Agreement. Notice of termination must be given in writing.
13.2. If the Client has given timely notice of its objection to the amendment, without having duly terminated the Agreement, the unamended General Terms and Conditions shall continue to apply between the parties until the Assignment is completed or the Agreement is terminated, but for no longer than six (6) months from the end of the aforementioned thirty (30) day period. If the Agreement continues thereafter, the amended General Terms and Conditions shall apply thereafter.
14.1. The Agreement as well as the General Conditions are governed by Dutch law. In the event of a dispute, the parties shall apply to the competent court in The Hague.
15.1. Notwithstanding the provisions of, inter alia, article 3 paragraph 2, after the termination of the Agreement, the provisions intended to continue to apply after the date of termination shall nevertheless continue to apply, including in any event the provisions of articles 5.1 and 6.1 (obligation to keep records), article 10 (confidentiality), 11.4 and 11.6 (obligation to insure) and article 12 (integrity).
15.2. Neither party shall be permitted to assign (part of) its rights and/or obligations under the Agreement to another party without the prior written consent of the other party.
15.3. If a party consists of more than one (natural and/or legal) person, they are always jointly and severally liable to the other party for all obligations arising from the Agreement.
15.4. In interpreting the provisions of the Agreement as well as the General Terms and Conditions, in the event of ambiguity or disagreement, such provisions shall not be relied upon against the party that wrote or is deemed to have written the provision in question merely by virtue of the fact that the party has been/is deemed to have been a penciler.
Alphen aan den Rijn, May 2021