Terms and conditions
Applicability
1. These General Terms and Conditions shall apply to all agreements concluded between FDR & Associés B.V. (“Office”) and another contracting party (“Client”) and those performed by the office as well as to all obligations binding on or observed by the office.
All provisions of these General Terms and Conditions have been stipulated for the benefit of and in the interest of FDR & Associés B.V. as well as its director(s) and those which are employed at or for the office. And any other (legal) persons who declared that these General Terms and Conditions apply.
All agreements and obligations are exclusively concluded with or, as the case may be, accepted and performed by the Office. At variance with the provisions of Book 7, Sections 404, 409 and 422 subsection 1 under b of the Dutch Civil Code, regardless of whether the Client commissioned the Office with a specific person in mind, all work is therefore performed by the Office. The director(s) of FDR & Associés B.V. and those working for the Office are not personally bound or liable and the assignment shall not end on account of their death, the person being placed under an administration order or their bankruptcy.
2. The assignments may pertain to:
- (International) trade intermediation and advice
- Organizing and holding auctions
- Making inventories, taxations and selling movable and immovable property o (International) intermediation in the event of the sale of immovable property o Intermediation and assistance in sale & lease back constructions
- Executing lease constructions
- The arrangements for title retention
- Credit management and collection
- Obtaining information and verifying data in the broadest sense
- Insolvency consultancy, assistance and execution
- Acting as a sequestrator
- External risk management ‘banking’
- Any other agreed activities and legal transactions
3. These General Terms and Conditions shall prevail above any other possibly applicable terms and conditions. Deviations from these terms shall only be applicable if explicitly confirmed in writing by the Office.
Materialization of Assignments
4. All offers by the Office may be revoked until they have been accepted, also if they stipulate a period for acceptance.
5. Offers can only be accepted in writing by the Client, however, the Office shall be entitled to accept an oral acceptance as if it had been made in writing.
Performance of Assignments
6. The Office performs all assignments with the care which may be reasonably expected from the office, given the nature of the Assignment, the time restraints, the information provided by the Client and any other facts and circumstances.
7. If the Client provides information for the performance of the Assignment, the Office shall assume these data to be correct, unless the Assignment (also) pertains to verifying these data. Should the data – for example, with respect to third party rights such as retention of title, right of pledge and attachments – prove to be incorrect in the course of the Assignment, the consequences of these shall be entirely for the account of the Client and the Assignment shall be adjusted in accordance with Articles 13, 14 and 15.
8. The indicated or agreed periods for the performance of the Assignment shall never be final dates, unless agreed otherwise in writing.
Engagement of third parties
9. In the performance of Assignment, the Office may avail itself of the services of third parties. The Office shall select these third parties to the best of its ability and pay them in accordance with market standards. If the Office avails itself of the assistance of third parties in the performance of an obligation, the Office shall not be liable for their conduct. Such without prejudice to the obligation of the Office to observe due care in the selection of said third party and, should such be reasonably possible, to consult with the Client about the engagement of said third party.
10. The delivery agreed between the Office and these third parties shall also apply to the relationship between the Office and the Client. The Office shall inform the Client of this upon its first request.
Confidentiality
11. The Office shall treat all data and information made available by or behalf of the Client as confidential and shall only disclose it to third parties to the extent that this is necessary in order to perform the Assignment.
Records Retention Period
12. The Office shall keep all documents and files with respect to an assignment for a period of five years after the completion of the Assignment. After the expiry of this period, the office may destroy the documents and files.
Unforeseen Circumstances
13. Should any unforeseen circumstances occur, which are of such a nature that the Office cannot reasonably be required to proceed with the unaltered performance of the Assignment, the Assignment shall be adjusted in consultation with the Client.
14. If no agreement can be reached about the adjustment of the Assignment, it may be terminated by the Client and /or the Office with immediate effect.
15. In the event of premature termination, Articles 16,17 and 18 shall apply to the part of the Assignment already completed by the Office.
Payment
16. All assignments shall be performed at the agreed rates or else, in the absence of same, at the customary rates of the Office.
17. All costs incurred by the Office shall be charged on in full by the Office to the Client. These costs shall at any rate pertain to the costs of the engagement of third parties.
18. The Office may adjust all rates at least once a year, in accordance with the customary adjustments at the Office.
Liability and Indemnification
19. The Office has concluded an occupational and third-party liability insurance. Any liability of the Office vis-à-vis the Client shall be limited to the amount for which the Office can charge the Client upon the completion of the Assignment concerned.
20. Should the insurances as referred to in Article 19 not lead to payment, the Office’s liability vis-à-vis the Client shall be limited to the amount which the Office may charge the Client for its own activities upon the completion of the Assignment concerned. A copy of the current policy shall be available for inspection at the Office.
21. If the duration of the Assignment is more than three months, the amount as referred to in Article 20 shall be determined by the total amount of the sums charged by the Office in the three months preceding the Client’s notice of liability.
22. Any claim of the Client on the Office shall become void if it has not been filed in writing, stating reasons, with the Office within 14 days after the Assignment terminated, or at least, to the extent that this were to be earlier, after the part of the Assignment which gives rise to claim terminated.
23. The Client shall indemnify the Office and the third parties engaged by the Office for any claims of third parties in connection with the Assignment.
24. Any liability of the Office beyond the limitations stated in Articles 19 to 23, inclusive, is excluded.
Liability and notice of default
25. All claims of the Office shall be immediately exigible. The Client shall at any rate be assumed to be in default – without any warning being required – if payment has not been made within the payment period granted, which shall at all times exclusively be a terme de grâce. Hence, upon default, extra judicial collection costs (calculated in accordance with the collection fees of the Dutch Law Society) and statutory interest shall be owed up to the date of full settlement. In addition, the Client shall be obliged to pay all court expenses of the Office in full.
Applicable law and choice of forum
26. (The creation of) a legal relationship between the office and the Client or the third party engaged by it shall be governed exclusively by Dutch law. Any disputes shall exclusively be settled by the competent Dutch court in Amsterdam. Exclusively the Dutch text of the Terms shall be binding.
Amsterdam, 23 January 2006
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