GENERAL TERMS AND CONDITIONS LESSOR
Clause 1: Applicability, Definitions
- These conditions apply to all offers and to all intermediary services agreements that the HousingXL Estate Agent, hereinafter to be referred to as ‘Estate Agent’, enters into with his Clients in their capacity of prospective lessor, hereinafter to be referred to as ‘Client’.
- Intermediary services are taken to mean: the Estate Agent’s best effort obligation in return for payment of an intermediary fee (brokerage fee) by the Client focused on bringing the Client into contact with a potential lessee or potential lessees, so that Client can enter into a lease for Accommodation with a lessee, as referred to in article 7:425 Civil Code.
- The intermediary fee or brokerage fee is taken to mean the payment owed by Client to the Estate Agent in return for his intermediary services.
- Management fee is taken to mean the payment owed by Client to Estate Agent or a third party for his financial and/or maintenance management activities.
- If a provision below specifically refers to the situation where Client is a natural person who is not acting in the course of a profession or business, he will be referred to as ‘the consumer’.
- Provisions that deviate from these General Terms and Conditions will only form part of the Agreement entered into between parties and to the extent that parties have explicitly agreed this in writing.
- In these General Terms and Conditions, ‘in writing/written’ will also include: by e-mail or any other communication method which, having regard to state-of-the-art technology and generally prevailing opinions, can be regarded as equal to this.
- The written advice, documents, valuation reports, examinations and such like to be issued by Estate Agent or Client will be indicated as ‘the documents’. ‘The documents’ will mean written documents and works recorded on other media, such as computer disks, USB sticks or any other data carriers, unless parties have agreed otherwise in writing.
- If Client comprises two or more (legal) entities, they are jointly and severally liable towards Estate Agent for compliance with all obligations towards Estate Agent.
- If, for whichever reason, (part of) a provision of these General Terms and Conditions should not apply, this will not affect the applicability of the other provisions.
- If Estate Agent does not require compliance with due speed from Client, this does not affect the Estate Agent’s right to compliance.
- Client cannot invoke the fact that the General Terms and Conditions were not made available to him if Estate Agent provided Client with these General Terms and Conditions for a previous transaction or Client was given a previous opportunity to take cognizance of the content and to save them electronically.
- Estate Agent reserves the right to amend the Estate Agent’s General Terms and Conditions in the event of amended legislation.
Clause 2: Agreements, Instructions
- Estate Agent shall only be bound by verbal agreements once these have been confirmed in writing by Estate Agent or once Estate Agent has commenced the implementing acts with the Client’s consent.
- Supplements or amendments to the General Terms and Conditions or other changes or additions to the Agreement will only be binding after written confirmation from Estate Agent.
Clause 3: Client’s Obligations, Liability to pay Brokerage Fee
- Client must ensure that any details needed to fulfil the Agreement are provided to the Estate Agent in a timely fashion and in the format requested by Estate Agent. On his own initiative, Client will provide all information and details to Estate Agent that are necessary within the scope of the fulfilment of the instruction and Client guarantees the genuineness of them. This information includes, but is not limited to: a copy of the deed of transfer of title or the lease agreement with the Accommodation owner, of the deed of division, of the division regulations, of the standing rules, of the standing rules for the owners’ association and Client’s valid proof of identity.
- After Client has informed Estate Agent to agree with the property lease to a lessee proposed by Estate Agent, Estate Agent will, if this notification was not communicated in writing, confirm this in writing (by e-mail) to Client. Client has the right to communicate to Estate Agent in writing (by e-mail) withdrawal of his permission as referred to above within 24 hours from receipt of this e-mail. This right will lapse after this 24-hour period has expired. Client shall not have this right if he has communicated his consent in writing to Estate Agent as referred to above.
- Client will render his cooperation to the proper fulfilment of the intermediary services agreement by both parties in all respects. Client will not do anything and/or refrain from doing anything that hinders or could hinder the proper fulfilment of this Agreement.
- If Client appears to (also) lease the particular Accommodation or have given it in (partial) use to one or more persons or parties, of whom Client has received the details from Estate Agent, Client owes the brokerage fee to Estate Agent, irrespective of whether the lease agreement was formed through intermediary services from Estate Agent.
- If, through whichever cause, the lessee, with whom Client has entered a lease through intermediary services from Estate Agent, does not go and live in the particular Accommodation, or if the lease for this Accommodation is terminated, annulled or cancelled, Client must still pay the brokerage fee and Client is not entitled to full or partial refund thereof.
- If a permit is required for the particular Accommodation, obtaining this permit for Client and/or lessee shall be at the risk and account of Client and Client shall be obliged to pay the brokerage fee irrespective of whether the permit has been or will be issued, unless parties have agreed otherwise.
- If, after giving his consent to lease the particular Accommodation to a lessee proposed by Estate Agent, Client no longer wishes to lease the Accommodation to the particular lessee, for reasons that cannot be attributed to Estate Agent, Client shall be liable to pay Estate Agent an amount equal to the brokerage fee Client would have owed Estate Agent if a definitive lease had been concluded with the particular lessee. In addition, Client is obliged to indemnify Estate Agent for any loss suffered by the lessee in question.
- If the obligations stated in this clause are not complied with in time, Estate Agent will be entitled to suspend fulfilment of the Agreement until the time at which Client has complied with these obligations. Any costs related to the delay and/or the costs for carrying out extra work or other consequences ensuing from this are for the Client’s account and risk.
Clause 4: Personal Data
- The Client’s personal data are included in the Estate Agent’s and his franchisor’s records. By signing the Agreement, Client has granted permission to use Client’s personal data for marketing purposes as well as to use these data for the fulfilment of agreements entered by Estate Agent with Client, in accordance with the valid privacy regulations for the franchising organisation Estate Agent is part of as a franchisee.
Clause 5: Terms
- The stated terms within which the Estate Agent must have performed the work or the documents and/or services must have been provided/rendered can never be considered to be deadlines, unless parties have explicitly agreed otherwise in writing. If Estate Agent does not comply with his obligations from the Agreement or does not comply with them in time, Estate Agent must be given notice of default in writing, allowing for a reasonable term to still meet the obligations.
- Estate Agent is authorised, in respect of the Client’s compliance with his financial obligations, to require advance payment or security from Client, before commencing the work to be performed or continuing it.
- HXL Nederland is authorised, in respect of the Client’s compliance with his financial obligations, to require advance payment or security from Client, before commencing the work to be performed or continuing it.
Clause 6: Progress, Fulfilment of Agreement
- Estate Agent is obliged to fulfil the Agreement in a professional and careful manner and in accordance with the standards applicable in his sector.
- Estate Agent cannot be obliged to commence the performance of the work any earlier than when he has all the necessary details in his possession and has received any payment or advance payment agreed upon.
Clause 7: Agreement Term, Best Efforts Obligations for Estate Agent
- An agreement for intermediary services is for an indefinite period, unless agreed in writing otherwise.
- Estate Agent will act according to his best knowledge and ability to achieve the result desired or intended by Client. At all times, this will be an obligation of best efforts for the Estate Agent and not an obligation of result. If the aforementioned result is not achieved, Client is not relieved of his obligations towards Estate Agent, with the exception of any obligations that parties explicitly linked to achieving the intended result.
Clause 8: End and Termination of the Intermediary Services Agreement
- Unless agreed otherwise and without prejudice to the other provisions in these General Terms and Conditions, the Intermediary Services Agreement will end due to:
- termination by the Client;
- termination by the Estate Agent.
Clause 9: Complaints
- Client is obliged directly upon receipt of documents, such as the Estate Agent’s (draft) lease, to verify these documents. Any inadequacies must be reported to the Estate Agent in writing within 2 working days of receipt of the documents.
- Other complaints, including complaints with regard to the work carried out or the services provided, must be made by the Client to the Estate Agent by registered letter no later than 2 months from discovery or after the Client should reasonably have discovered them, failing which the Client will no longer be able to hold the Estate Agent responsible for any shortcoming in the Estate Agent’s performance.
Clause 10: Client’s Liability and Responsibility
- If Estate Agent mediates in the formation of a lease between lessor and lessee, the Estate Agent will never be a party to the lease and will not be liable for the content and fulfilment of the lease by parties. In no event is the Estate Agent, neither for a financial nor maintenance management instruction, liable for any Client loss that is the result of the situation of the rent and/or the agreed service (costs) and/or the additional, whether or not once-only, fees not being in accordance with the law, that arises as a result of the absence of a housing permit for the Accommodation, the absence of permission from the mortgage holder for renting out the Accommodation or the presence of cannabis growing facilities. There are legal rules for setting rents for a so-called (social) living accomodation, the rentcommission is the authorised instance.
- Estate Agent fulfils his duties as may be expected of a professional company in his sector, but does not accept any liability for damage, including consequential damage, trading loss, loss of profits and/or business interruption loss, caused by the actions or negligence of the Estate Agent, his staff or any parties he engages.
- Estate Agent is not liable for any loss suffered by Client as a result of actions or negligence by the other party for the lease concluded by the Estate Agent’s mediation.
- By signing the Agreement, Client states and guarantees in all respects (including any claims of whichever nature from any other entitled party/parties with regard to the Accommodation, mortgage holder(s), insurer(s), (local) authorities, manager(s), other housing broker(s), Owners’ Associations and such like) to be authorised to offer for lease and to lease the Accommodation and indemnifies Estate Agent against any claims from third parties concerning the matter and against any judicial and extrajudicial costs to be incurred by Estate Agent.
- Client states to be fully aware that according to mandatory legislation, the Accommodation’s lessee is protected against, inter alia, notice of termination of the lease by the lessor (due to which temporary leases, subject to specific exceptions, are usually not possible) and against excessive rents and service costs. Client (and not Estate Agent) determines the term of the lease desired by Client, rent amount, deposit amount, composition of the service package and/or amount of (the advance for) the service costs. Estate Agent is not liable for loss that is the result of the content of the lease agreement in particular where it concerns the duration term of the lease, the rent amount, deposit amount, amount of (the advance for) the service costs and the composition of the service package.
- The liability limitations contained in this clause do not apply if the loss is due to Estate Agent’s intentional act or omission and/or recklessness.
- Without prejudice to the provisions in the other subclauses of this clause, liability is limited at all times to the amount to be paid by the Estate Agent’s insurer where appropriate, to the extent that Estate Agent is insured for this.
- If Estate Agent is not insured as referred to in the previous subclause, Estate Agent’s liability is limited at all times to twice the amount of the brokerage fee charged or to be charged by Estate Agent to Client for his work and/or services.
- Estate Agent is not liable for the consequences of any damage and/or defects to the property that were present on acceptance of the property by lessee and/or the departure of lessee from the property. It is up to the Client to inspect the property for any damage and/or defects and take this up with the lessee if necessary.
Clause 11: Payment
- Unless agreed otherwise, Client must pay everything owed to Estate Agent within 7 days from invoice date. This term is a final deadline. In the event of late payment:
- Client will owe Estate Agent default interest in the amount of 1% per month to be calculated cumulatively over the principal. Parts of a month are considered as a full month;
- Client will owe, after having received a demand from Estate Agent, a minimum of 15% of the principal sum and the statutory default interest in the sense of art. 6:119a Civil Code, or art. 6:119 Civil Code for consumers, with a minimum of € 40;
- The Client must pay anything owed to the Estate Agent on time without any claim to discount, suspension, set-off or reversal. Estate Agent is entitled to set off anything owed by Client to Estate Agent against the rent to be received from the lessee in case of non-payment of what is owed in full within the payment term.
- At the Estate Agent’s discretion, in the above or corresponding circumstances, the Agreement may be dissolved in part or in full, without further notice of default or judicial intervention, whether or not in combination with a compensation claim.
- If Client has not complied with his payment obligations in good time, Estate Agent is authorised to suspend towards Client compliance with the obligations to deliver and/or suspend the performance of work until payment has been made or proper security has been furnished. The same applies prior to the time of default if the Estate Agent has reasonable suspicion that there are reasons to doubt the Client’s creditworthiness.
- Payments made by the Client will always be used to cover all costs and interest owed and subsequently to pay due invoices that are longest outstanding, unless Client has explicitly stated in writing that the payment refers to a later invoice.
- The Client’s right to compensation does not reduce the Client’s obligation to pay in conformity with the Agreement.
Clause 12: Bankruptcy, Losing Power to Dispose of Property, etc.
- Without prejudice to provisions in the previous subclauses of these terms and conditions, the Agreement entered into between the Client and the Estate Agent may be terminated by the Estate Agent without judicial intervention and without any notice of default being required, at the moment the Client:
- is declared bankrupt;
- applies for (provisional) moratorium of payments;
- is affected by executory attachment;
- is placed under guardianship or administration;
- otherwise loses the power to dispose of property or legal capacity with regard to his assets or parts of them.
- The provisions stated in subclause 1 of this clause apply, unless the receiver or administrator acknowledges the obligations ensuing from the Agreement as an estate debt or is prepared to fulfil the Agreement.
Clause 13: Confidentiality
- The Client is prohibited to pass on information that he receives concerning this instruction from Estate Agent, to third parties, apart from the manager, such under penalty of compensation for all loss, to be incurred due to this by Estate Agent.
Clause 14: Transfer
- By signing the Agreement, Client grants permission to Estate Agent in advance to transfer the legal relationships arising from the Agreement between Client and Estate Agent pursuant to article 6:159 Civil Code to a third party or third parties in full or in part.
Clause 15: Competent Court, Applicable Law
- The Agreement entered into between Estate Agent and Client will be exclusively governed by Dutch law. Any disputes arising from this Agreement will also be settled according to Dutch law.
- Any disputes will be settled by the Dutch competent court, unless Estate Agent has, to the extent that the law does not mandatorily oppose this, the authority to commence proceedings before the competent court in the place where the Estate Agent has his seat.
(version January 2015, General Terms and Conditions Lessor)