General terms and conditions Aankoopmakelaar Amsterdam
General terms and conditions Aankoopmakelaar Amsterdam Chamber of Commerce 63404230
Article 1 Definitions
1.1 In these general terms and conditions the following terms are defined as stated below:
The real estate agent: the private company with limited liability Aankoopmakelaar Amsterdam B.V., located at (1015 BW) Amsterdam, Herengracht 142, listed in the trade register under: 63404230.
Client: client being a natural or legal person, whether or not acting in exercising a profession or business.
Real estate contract: the agreement from contract to service, consisting of mediation and advice regarding the buying, selling and renting real estate, and also includes real estate management and other services carried out by the real estate agent, hereinafter referred to as: ‘contract’.
Fee: the costs for the real estate agent’s service, including commission.
Commission: the fee that is payable in respect to mediation regarding buying, selling, renting or leasing real estate.
Article 2 Applicability
2.1 These general terms and conditions apply to all closed contracts between real estate agent and client, and also to the offers and quotations the real estate agent makes in that respect, except when and in fact involved parties have explicitly and in writing deviated from these terms.
2.2 These terms also apply to closed contracts between real estate agent and client, in which the real estate agent includes third parties for the execution.
2.3 The applicability of the client’s general terms and conditions is explicitly rejected. Deviating clauses are binding only when the real estate agent has accepted these explicitly and in writing.
2.4 In case one or more provisions in these general terms and conditions are voided or declared null, the other provisions of these general terms and conditions remain fully applicable. At that moment the real estate agent and client will confer in order to agree on new provisions replacing the voided and/or nullified provisions, which are taking the goal and purport of the original provision into account as much as possible.
2.5 Provisions from this agreement prevail the contents of these general terms and conditions, should these provisions not coincide with these general terms and conditions.
Article 3 General and personal offers
3.1 A real estate agent’s offer consists of a general offer and a personal offer. Every offer a real estate makes comes free of charge, unless an acceptance term is included in the offer. If there is no acceptance term included, the client can’t derive any rights from the offer.
3.2 The general offer (on the website) of Aankoopmakelaar Amsterdam includes a description of the services the client can expect. The general offer also includes the fee for those services and other conditions in which the services are carried out.
3.3 After the client has taken notice of the general offer, the client is given the opportunity to negotiate the offer with the real estate agent, in order to come to a personal offer.
3.4 The real estate agent makes sure the personal offer will be registered in writing. The contract e.g. agreement between the real estate agent and the client is reached by a client’s’ written acceptance of the personal offer. When no written acceptance has taken place, the agreement is reached when the real estate agent partially or fully complies with the contract, or if the real estate agent sends an invoice to the client. The invoiced tasks are then considered to correctly (fully) display the agreement.
3.5 The real estate agent can’t be held responsible for his general and personal offer, when the client should reasonably see that the (general and/or personal) offer, or part of it, includes an obvious mistake or writing error.
3.6 In the case the acceptance (with or without secondary issues) deviates from the (personal) offer that has been included in the quotation or offer, the real estate agent isn’t bound to it. The agreement hasn’t been reached according to this deviating acceptance, unless the real estate agent concurs with this deviating acceptance in writing.
3.7 A composed quotation doesn’t require the real estate agent to carry out part of the contract for the corresponding part of the communicated price. An offer doesn’t automatically apply to (comparable) future contracts or services.
Article 4 Contract to mediate
4.1 The heart of the contract to mediate concerns giving advice on and the conduction of negotiations. The contract to mediate can be extended with the following services:
- Discussion and advice about the options to reach the intended agreement and about conducting negotiations.
- Care and guidance of house visits.
- Value assessment of the concerning real estate and assessment of the documents/communication delivered by the selling/renting agent.
- Giving attention to legal, fiscal, constructional and other important aspects.
- Guidance in finishing the process.
- Research into development plan, easement, ground lease, owners association, cadastral survey, environmental aspects and other possible obstacles.
4.2 On the contract to mediate applies – unless agreed otherwise – that the real estate agent has visited the real estate at least once, during or prior to the contract.
4.3 The execution of the granted contract is done only for the client. Third parties can’t derive any rights from the contents of the work performed.
Article 5 Alteration of the contract e.g. the agreement
5.1 Alterations in the already provided contract e.g. agreement have to take place in writing and have to be accompanied by a clear description of those alterations. The alteration(s) is (are) apply not until the alteration(s) is (are) confirmed by the real estate agent in writing.
5.2 If the contract includes more than the described services included in the contract, the real estate agent should inform the client in writing in advance.
5.3 The costs (whether or not included in a revised commission), connected to the alteration of the contract e.g. the agreement, should be paid by the client.
Article 6 Duration and termination of the contract
6.1. The duration of the contract is for an indefinite period, unless the parties have agreed otherwise.
6.2 If a term is agreed on or stated in the contract, than this will never be a firm date. When exceeding a term the real estate agent is in default when the client notifies the real estate agent of default in writing and the real estate agent is granted a reasonable term in order to meet his obligations. This reasonable term will be a minimum half of the originally agreed term for carrying out the contract.
6.3 The contract ends by:
- A. Completion of the contract by the real estate agent, unless the contract has an infinite character.
- B. Expiration of the agreed term in case of a contract with a definite period.
- C. Withdrawal (cancellation) of the contract by client.
- D. Return of the contract by the real estate agent.
- E. Dissolution by one of both parties.
6.4 Termination of the contract takes effect the date on which the real estate agent or client respectively has received the written agreement concerning the above mentioned termination (or the due date mentioned in that comment).
6.5 The contract is completed by the real estate agent, when the agreed performance has been finalised. When the intended performance is focused on buying a home, the contract is completed once the purchase is registered in a purchase agreement, signed by both parties. Also after the contract is completed, the real estate agent will commit himself to the obligation according to the contract, to guide the client in the settlement after the purchase, although no longer than for a period of two (2) months after completion of the contract.
6.6 The real estate agent can return the contract in writing based on important reasons. Important reasons are at least the case when:
- The client wishes to alter the contract in such a way (also in case of a price increase) the performance can no longer be carried in the short term and aforementioned hasn’t been confirmed in writing in accordance with article 6.1 in these general terms and conditions.
- The client doesn’t meet the obligations that result from the contract.
- There is a serious disruption in the relationship between the real estate agent and client, as such by the assessment of the real estate agent.
6.7 The client can – with due regard for what is determined by law – terminate the contract in accordance with a termination period of three (3) months. Withdrawal (cancellation) by the client has to take place in writing by the end of the month.
6.8 In case the client terminates the contract the real estate agent is entitled to compensation of all costs made and, if and for as far agreed when issuing the contract, of the required fee.
6.9 Both parties can dissolve the contract, when the other party falls short in meeting its obligations. The (non-judicial) declaration of dissolution must take place in writing and can only take place not until after a notice of default for which the other party has been given a reasonable period of time to still meet the obligations.
Article 7 The client’s obligations
7.1 The client is obliged to timely provide the real estate agent with all information, which the real estate agent needs in order to carry out the contract e.g. his service properly, or from which the real estate agent reasonably should understand that this is necessary for carrying out the contract e.g. services.
7.2 The client refrains from activities that can obstruct the real estate agent or hamper his activities while carrying out the contract. The client doesn’t utilise similar services, doesn’t establish another agreement (of contract) and doesn’t negotiate with other people than the real estate agent.
7.3 The client can’t derive any rights from advice and information if these aren’t directly related to the contract e.g. the agreement.
7.4 The client cooperates in the real estate agent’s fulfilment of his legal obligations.
7.5 The client must have visited the real estate at least once before a contract between the client and real estate can be agreed.
Article 8 The real estate agent’s obligations
8.1 The real estate agent carries out the accepted contract to his best knowledge and ability and with due regards to the client’s interests. The real estate agent only commits himself solely to obligations of means, unless and in so far both parties have explicitly agreed otherwise in writing. Unless agreed otherwise, the real estate agent can, under his responsibility, let others carry out the services required to fulfill the contract. For the real estate agent the applicability of articles 7:404 and 7:407 section 2 Civil code is explicitly excluded. The selection of third parties by Aankoopmakelaar Amsterdam will, if possible, take place in accordance with the client with due diligence. Aankoopmakelaar Amsterdam is not liable for failures of these third parties. The client empowers Aankoopmakelaar Amsterdam to accept possible third party liability restrictions on behalf of him.
8.2 In case the client provides the contents of the services Aankoopmakelaar Amsterdam carries out for him to third parties, the client is obliged towards Aankoopmakelaar Amsterdam to inform this third party that those services were carried out under applicability of these general terms and conditions. In case a third party uses the contents of those services in any way, that third party is bound to the contents of these general terms and conditions.
8.3 The real estate agent informs the client about the progress on a regular basis.
8.4 The real estate agent is obliged to sufficiently insure his liability for any damage that comes from a culpable deficiency or wrongful and keep it insured.
8.5 The real estate agent is not entitled closing agreements on behalf of the client, unless he/she has granted a written or electronic proxy to do so.
8.6 When carrying out the contract the real estate agent abides by the Data Protection Act and the Act for the prevention of money laundering and financing of terrorism.
Article 9 Fee, costs and claimability
9.1 In case factors determining the rate, like wages and/or prices, will change after the realisation of the contract, though before the contract e.g. service is carried out in full, the real estate agent is entitled to adjust the previously agreed price (fee) accordingly. The real estate agent’s fee includes commission, though excludes the real estate agent’s costs and declarations by possible third parties hired by the real estate agent.
9.2 The client compensates the real estate agent’s costs made when carrying out the contract. This compensation – the fee excluded – refers to all additional costs. The real estate agent and the client consult with one another in advance and agree upon the size of the costs, which are registered in writing. Aforementioned (obligated) compensation also takes effect if the contract is suspended or is terminated based on one of the reasons mentioned in article 7 of these general terms and conditions.
9.3 The fee (including commission) that the real estate agent and the client have agreed and the additional costs includes VAT, unless explicitly agreed otherwise.
9.4 Unless agreed otherwise, a claim against the client is directly claimable:
- because of an owed fee, commission or costs after the contract has been finalised, after the execution of the contract, or if the contract is terminated for another reason.
- during the legal transfer of the real estate at the notary office, without the client (consumer) owes the real estate agent interest for the time between the chargeability of the commission and its claimability.
- when it is certain that a concluded contract doesn’t lead to a legal transfer of a real estate at the notary office and the real estate agent is entitled to commission.
Article 10 Payment
10.1 Payment of fee, commission and other costs have to take place within fourteen (14) days after the real estate agent has sent a detailed invoice.
10.2 When exceeding the agreed payment term and in case of legal debt rescheduling, liquidation, bankruptcy, attachment or moratorium of the (corporate) client the full claim for payment is directly claimable.
10.3 In case the client doesn’t pay at all, not on time or not in full, the real estate agent will send the client a payment reminder in which the client is provided with the opportunity to still pay within fourteen (14) days after receiving the reminder, without the commitment of additional costs.
10.4 In case the client is in default meeting his obligations (on time), all reasonable costs – as well as extrajudicial expenses, calculated according to the ‘ Extrajudicial collection costs decree 2012’, are at the expense of the client, without prejudice to the rights the real estate agent moreover are is entitled to, such as a compensation or compliance.
10.5 Client is in default when client also doesn’t follow up on the payment reminder within fourteen days mentioned in paragraph 3. The real estate agent is then entitled, without any further notice of default, to proceed collecting the due payment. The client is due legal interest on the outstanding invoice amount, the professional client is due an interest rate of 1% per month or the statutory interest rate, if higher. This is during the months the client is in default, for which a part of the month stands for a whole month when calculating interest.
10.6 Every corporate client’s authority with regards to settlement or suspension, under any circumstance and for any reason, is expressly excluded.
10.7 In case the contract is issued on behalf of more than one person, everyone of them is jointly and severally liable for paying all that is owed, under any circumstance.
Article 11 Liability
11.1 The real estate agent is only liable for damage the client suffers and is exclusively the consequence of failure that can be directly attributed to the real estate agent.
11.2 In case the real estate agent is liable for any direct damage, than only the damage is compensated for which the real estate agent is insured or reasonably should be insured for. In case the insurance company refuses payment – or it hasn’t been (proven) possible for the real estate agent to hold or extend a professional liability insurance against reasonable conditions – the compensation is limited to a maximum of three times the charged fee.
11.3 Direct damage exclusively refers to:
- The reasonable costs establishing the cause and scope of the damage, for as far the establishment relates to the damage within the meaning of these general terms and conditions.
- The possible reasonable costs due to the real estate agent’s defective performance conform to the agreement, unless they can’t be attributed to the real estate agent.
- Reasonable costs, made to prevent or limit the damage, for as far as the client demonstrates that these costs have led to limitation of the damage as mentioned in these general terms and conditions.
11.4 The real estate agent is not liable:
- for damage incurred as a result of an intentional act or willful recklessness on the part of the real estate agent’s assistants or non-executive subordinates.
- for indirect damage, including trading loss, consequential damage, loss of profit, lost savings and damage due to business interruption.
11.5 The above is subject to exception in case of intentional act or omission on par with gross negligence on the part of the real estate agent. A series of connected incidents/events resulting in damage shall be deemed as one incident/event.
11.6 The client shall indemnify the real estate agent for all claims of third parties for any damage related to the executed contracts by the real estate agent, unless it is established by law that these claims are the result of an intentional act or omission or gross negligence on the part of the real estate agent and the client furthermore demonstrates that no blame can be attached to him with respect to the matter.
Article 12 Complaints and disputes
12.1 If a dispute arises between the real estate agent and the client about the conclusion or execution of the contract regarding services delivered or to be delivered by the real estate agent, the corporate client has to notify the real estate in writing within fourteen (14) days. This term of fourteen days is extend to two calendar months for the consumer client.
12.2 The complaint ought to be as detailed a description of the failure(s) as possible so the real estate agent is able to restore his possible failure.
12.3 Claims and defences based on facts that would justify the argument that the delivered services do not meet the terms of the contract are limited for a period of one (1) year, after the end of the delivered services.
12.4 In case the delivered services don’t meet the terms of the contract, the real estate agent shall only be obliged to deliver that which is missing or – for as far possible – restore carried out services.
12.5 If proper compliance of the contract by the real estate agent permanently proves to be wholly or partially impossible due to one or more circumstances beyond his will and control (e.g. reasonably beyond his will and control), the real estate agent has: a. in the event of force majeure the right, at his own discretion, to terminate the contract or still fulfil the contract at a later date. b. in case of permanent impossibility the right to terminate the contract, without the real estate agent being bound to any damages.
12.6 Not until parties have made every effort to settle the dispute in consultation a judge can be called upon. Unless provisions of mandatory law provide otherwise, all disputes shall be submitted to the competent court in the district in which the real estate agent has his place of business.
Article 13 Publications
13.1 Although when preparing all product and sales information and all other documents in written and digital the utmost care is exercised, there is always the possibility that certain information is obsolete or not correct anymore. Therefore the real estate agent isn’t liable for the consequences of activities being undertaken on the basis of these possible obsolete documents or websites.
13.2 All displayed images and (product) descriptions are informative only and can be prone to mistakes or errors.
Possible deviations of the delivered products e.g. services by the real estate agent to client don’t constitute any non-conformity and the real estate agent can, under no circumstances, be held liable for such deviations.
13.3 The real estate agent is not liable for any damage by client or any other, what may have been caused when visiting the real estate agent’s website, or caused by possible malicious files in whatever form, like viruses that can possibly be found in the emails and other digital files from the real estate agent, without his knowledge.
Article 14 Assignment of contract
14.1 The client isn’t allowed to transfer (any obligation from) the contract to third parties, unless the real estate agent expressly agrees on this (in writing). The real estate agent has the right to connect terms to this commitment. In any case the client commits itself to impose all relevant (payment) obligations from the contract to the third party. At all times, next to this third party, the client remains responsible for the obligations from this contract and these general terms and conditions, unless parties expressly agree otherwise.
14.2 In case of an assignment of contract the client indemnifies the real estate agent from all third party claims that should arise caused by not or wrongfully complying by client with any obligation from the contract and/or these general terms and conditions, unless any mandatory (international) law or regulation doesn’t allow for such a determination.
Article 15 Applicable law
15.1 All legal relations between the real estate agent and the client are exclusively subject to Dutch law, even if a contract is executed wholly or partially abroad, or if the other party involved in the contract claims residency in another country.
15.2 Any disputes will exclusively be settled by the competent court in Amsterdam.
15.3 These general terms and conditions are also stated in Dutch. In case of any difference between that text and the English text, the former is binding.