In these General Terms and Conditions capitalised terms shall be defined as set forth in this article 1.
- Additional Terms and Conditions: The general terms and conditions of sale and delivery which, in addition to the General Terms and Conditions, apply to the specified work.
- Opinion: An oral or written opinion of the result of the performance of the Agreement. A Report or Deed will be drawn up by Troostwijk when a value judgement or Opinion is given.
- Deed: A document drawn up in accordance with the prescribed forms and certified by an authorised person to record an appointment and loss assessment and, if necessary, to serve as evidence.
- General Terms and Conditions: These General Terms and Conditions of Sale and Delivery and the Additional Terms and Conditions of Troostwijk.
- Apresa: Apresa B.V.
- Documents: All information or data provided to Troostwijk by the Client, all data produced or collected by Troostwijk within the scope of the performance of the Assignment/Agreement and all other information of any relevance to the performance or completion of the Assignment.
- Data: The provision of digital information of the result of the performance of the Agreement in the form of a database.
- Revaluation: A Valuation of a Valuation previously carried out by Troostwijk for the same purpose.
- Natural Person: A natural person who is not acting in the exercise of a profession or business.
- Offer: The written or oral offer by Troostwijk to deliver a certain Performance to the Client at a certain price.
- Client: A Party that gives Troostwijk an assignment, in response to an offer or otherwise, for the delivery of a Performance, or with the intention to purchase it, or to enter into another type of agreement or with the intention to enter into this agreement with Troostwijk.
- Assignment: The assignment of the Client to Troostwijk to deliver and/or effect a Performance.
- Agreement: Every agreement concluded between the Client and Troostwijk concerning the delivery of a Performance by Troostwijk to the Client, as well as every change or addition thereto and all (legal) acts required for entering into or performing that Agreement.
- Subscription Agreement: Any agreement relating to services in the field of Valuation, which during the term of the agreement gives the right to annual adjustment of the Valuation, as well as a Revaluation around the end of the term of the agreement, at a previously agreed rate.
- Parties: The Client and Troostwijk.
- Performance: The goods delivered and to be delivered by Troostwijk to the Client, rights of use and other property rights and the services and work to be performed by Troostwijk on behalf of the Client (including specialist services in the field of Valuation, inspection, assessment or advice with respect to forming a value judgment or giving an Opinion, unless the content, scope or purpose of the Agreement determine otherwise), as well as the creation and delivery of a material work, including in any case, but not limited to, a Report, Deed, Opinion or Data.
- Report: The written representation of the result of the performance of the Agreement.
- Real Estate: Troostwijk Real Estate B.V.
- Real Estate Work: Work and/or services for the performance of the Agreement with respect to real estate located in the Netherlands or real estate located outside the Netherlands.
- Valuation: By an expert determined Value of tangible or intangible assets at a certain point in time
- Troostwijk: Troostwijk Groep B.V., Troostwijk Taxaties B.V., Troostwijk Expertises B.V., Troostwijk Real Estate B.V., Burghgraef van Tiel & Partners B.V. and Apresa B.V.
- Troostwijk Expertises: Troostwijk Expertises B.V.
- Troostwijk Taxaties: Troostwijk Taxaties B.V.
2.1 The provisions of these General Terms and Conditions apply to every Offer, Quotation, Agreement, Application, Assignment and all other legal acts, however named, in which Troostwijk undertakes/will undertake to effect a Performance for the Client, as well as to every Performance arising therefrom for Troostwijk.
2.2 Amendments and additions to the General Terms and Conditions shall only apply if they have been expressly agreed in writing between the Parties. The amendment and/or addition only applies to the relevant Agreement.
2.3 The Client is in any case deemed to have accepted these General Terms and Conditions by awarding an Assignment or accepting an Offer, as the case may be.
2.4 General terms and conditions of the Client, under any name, are hereby expressly rejected, unless the Parties have expressly agreed otherwise in writing.
2.5 The Client with whom a contract has been concluded on the basis of these General Terms and Conditions agrees to the applicability of these General Terms and Conditions to subsequent Agreements between it and Troostwijk.
2.6 The General Terms and Conditions also apply to all Agreements with Troostwijk, for which third parties are engaged in the performance.
2.7 If any provision of these General Terms and Conditions is not applicable or is invalid in the opinion of the court, this shall have no consequences for the validity of the other provisions, which will consequently remain in full force. The Parties shall hold consultations to replace the relevant non-applicable or invalid provision by a new provision, whereby the purpose and purport of the earlier provision shall be taken into account to the greatest extent possible.
3. Quotations and Agreements
3.1 All offers, Quotations and price specifications made by and information provided by Troostwijk, including budgets, plans, catalogues or other documents, however named and made in whatever way, are exclusively intended for the addressee and are entirely free of obligation, unless explicitly stated otherwise.
3.2 Troostwijk shall only be bound by a Quotation if the acceptance thereof by the Client is confirmed in writing within thirty (30) days, calculated from the date of the Quotation. Verbal promises or arrangements made by or with a person of Troostwijk shall not bind Troostwijk until after and insofar as Troostwijk has confirmed these promises and/or arrangements in writing.
3.3 Troostwijk cannot be bound to its Quotation if the Client could have reasonably understood that the Quotation, or any part thereof, contains an apparent error or spelling mistake.
3.4 Assignments and acceptances of Quotations by the Client shall be considered irrevocable and cannot be cancelled by the Client.
3.5 If the acceptance departs from the proposal included in the Quotation, Troostwijk shall not be bound by it. In that case, the Agreement shall not be concluded in accordance with said deviating acceptance, unless Troostwijk indicates otherwise.
3.6 Offers and Quotations do not automatically apply to subsequent orders.
3.7 If there is more than one Client, each of them shall be liable for the fulfilment of the obligations arising from this Agreement.
3.8 The Client is obliged to inform Troostwijk of facts or circumstances that may influence the performance of the Agreement, insofar as it was or could have been aware thereof.
3.9 Troostwijk shall not be liable for failures by third parties.
4. Prices / Rates
4.1 Unless explicitly stated otherwise, the prices in the Quotations and price specifications issued by Troostwijk are:
- in euros;
- excluding VAT, other government levies and taxes; and
- exclusive of travel and accommodation expenses and disbursements related to the performance of the Agreement, if any.
4.2 In an Agreement between Troostwijk and the Client, a fee based on hours, a unit price, a fixed rate or permillage agreed in advance between the Parties or otherwise may be agreed, even if these have not been further regulated in these General Terms and Conditions. The content, purport and purpose of the Agreement, among other things, may be taken into account.
4.3 Troostwijk expressly reserves the right to change the prices of the Performance. Prices quoted by or agreed with Troostwijk are based, among other things, on the cost price at the time of issuing the Quotation to the Client or acceptance of an Assignment by Troostwijk. If the cost price of the Performance is subsequently increased by one of the components for the calculation of the cost price of the Performance, even if this occurs as a result of foreseeable or unforeseeable circumstances, Troostwijk shall in any case be entitled to pass on the increase to the Client, provided that three (3) months have elapsed since commencement of the Performance. Under no circumstances shall the Client be credited for price reductions that take place after the conclusion of the Agreement.
4.4 Troostwijk expressly reserves the right to bring the prices of the Performances in line with the actual situation if the information available at the time of issuing the Quotation to the Client or acceptance of an Assignment by Troostwijk deviates from the actual situation at the time of performance of the Agreement.
4.5 In derogation of article 4.3, if the Client is a Natural Person, Troostwijk may change the prices of the Performance within three (3) months, provided that the Client is afforded the opportunity to terminate the Agreement.
5. Data to be provided by the Client
5.1 The Client is obliged to provide Troostwijk with all Documents that Troostwijk considers to be required for the correct performance of the Assignment, in the required form, in the required manner and at the required time. Troostwijk determines what is to be understood by the required form, in the required manner and at the required time.
5.2 To the extent that the nature of the Assignment does not dictate otherwise, the Client shall vouch for the accuracy, completeness and reliability of all Documents it has provided, including those obtained from third parties.
5.3 The Client shall bear the risk and expense of additional costs and time spent by Troostwijk, as well as other losses suffered by Troostwijk, due to the Client’s failure to provide Documents required for the performance of the Agreement, or to provide such Documents in a timely manner or properly.
5.4 Troostwijk has the right to suspend the performance of the Agreement until the Client has fulfilled the obligations stated in article 5.1.
6. Performance and delivery
6.1 Troostwijk undertakes to perform all Agreements to the best of its knowledge and ability.
6.2 Troostwijk shall at all times be entitled to perform the Agreement at its own discretion, whether or not by engaging third parties and whether or not to invoice them separately in parts.
6.3 In the event that work is performed by Troostwijk or third parties engaged by Troostwijk within the scope of the assignment at the Client’s location or at a location designated by the Client, the Client shall provide the facilities reasonably required by those employees free of charge.
6.4 If the performance of the Agreement requires the cooperation of subordinates of the Client, the Client shall be obliged to ensure that these subordinates will provide this cooperation on time and in a satisfactory manner.
6.5 During a period of three (3) years after the completion of the Agreement, the Client shall not be permitted to enter into an agreement with a third party engaged by Troostwijk without the express written prior permission from Troostwijk.
6.6 Delivery times and/or delivery periods specified by Troostwijk within which the Performance to be provided by Troostwijk will be delivered or the work to be carried out by Troostwijk will be carried out, the estimate of the hours to be spent within the scope of the Assignment and the number of hours to be spent on this for the Performance to be delivered, shall always be indicative and not binding on Troostwijk and no rights may be derived therefrom. Therefore, a specified delivery time or delivery term shall never be considered a strict deadline and exceeding it shall not entitle the Client to dissolution or compensation, unless expressly agreed otherwise in writing. In the event of late delivery, the Client shall give Troostwijk written notice of default before any default occurs.
6.7 The delivery time commences and the performance of the Agreement by Troostwijk commences once the Agreement has been concluded and once Troostwijk is in possession of all the objects, documents and data required for the performance and/or to be provided by the Client. In respect of the Client, Troostwijk shall be entitled to compensation for damage and costs resulting from the Client’s refusal or negligence to provide the information or instructions that are required for the delivery, or that result from circumstances that cannot be attributed to Troostwijk.
6.8 If, upon conclusion of the Agreement, the Client owes Troostwijk any payment from any other Agreement, the delivery time or term of performance does not commence until the day on which Troostwijk has received this payment.
6.9 The delivery time or the period for execution of a Performance may in any case be extended by Troostwijk by the time that the performance of the Agreement is delayed due to force majeure. It can also be extended by the time that the Client performs any obligation later than agreed upon or that can reasonably be expected by Troostwijk.
7.1 Payment must be made within fourteen (14) days of the invoice date, without deduction or discount, by means of transfer or deposit into a bank account designated by Troostwijk and in the currency stated on the invoice, unless explicitly agreed otherwise in writing. The day on which the invoice amount is credited to the bank account of Troostwijk shall be considered to be the date of payment.
7.2 Cash or a method of payment other than stated in the previous paragraph is only possible following permission from Troostwijk.
7.3 Troostwijk shall at all times be entitled to demand full or partial advance payment or cash payment of the Performance and/or otherwise to obtain security for the payment and/or other obligations of the Client. The Client waives any legal right to set-off, unless the Client is a Natural Person. If the Client fails to comply with a request from Troostwijk, as referred to in the first sentence, Troostwijk shall be entitled, at its discretion and to the extent reasonable, to suspend the fulfilment of its obligations pursuant to the Agreement, or phases of the Agreement, in whole or in part, until its request has been complied with, or to dissolve the Agreement. The delivery time or term of performance of (the next phase of) the Agreement does not commence until the day on which Troostwijk has received the claimed payment.
7.4 If the Client does not pay any amount it is due in accordance with the above, it shall be in default without any reminder or notice of default. As soon as the Client defaults on any payment, all other claims of Troostwijk against the Client shall become immediately due and payable and the default with respect to those claims shall also take effect immediately without notice of default. With effect from the day on which the Client is in default, it shall owe Troostwijk, without prejudice to its further rights under the law or the Agreement, the statutory commercial interest as referred to in Section119a, Book 6 of the Dutch Civil Code on the outstanding amount from the due date. If the statutory interest as referred to in Section119, Book 6 of the Civil Code is at any time higher than the interest applicable by virtue of the previous sentence, the statutory interest shall be owed instead of the aforementioned interest. If the Client is a Natural Person, interest shall be due on the outstanding amount from the due date, equal to the amount of the statutory interest as referred to in Section 119, Book 6 of the Dutch Civil Code.
7.5 In addition to the amount owed, plus interest where applicable, the Client shall compensate Troostwijk for all costs and damage incurred or suffered by Troostwijk as a result of the Client’s failure to pay or to pay on time, including both the costs of judicial and extrajudicial measures taken by the Troostwijk. The extrajudicial costs are considered to amount to at least 15% (fifteen percent) of the amount owed plus interest and disbursements made and tax owed, with a minimum of EUR 75 (seventy-five euros), without Troostwijk being obliged to demonstrate that these costs were actually incurred by Troostwijk. If the Client is a Natural Person, the Client may, contrary to the previous sentence, put forward a defence with respect to these costs. The Client shall owe all legal costs incurred by Troostwijk in all instances, including amounts not allocated by the court, if a judicial decision acquires the effect of res judicata in which the Client is completely or predominantly ruled against, unless it concerns a Client who is a Natural Person. Section 92, Book 6 of the Dutch Civil Code does not apply, except in the case of a Client who is a Natural Person.
7.6 Troostwijk has the right to consider each payment made by the Client as payment of the oldest outstanding invoice, irrespective of any statement to the contrary (expressly) made upon the payment. Furthermore, Troostwijk shall be entitled to use the payments made by the Client first to settle costs, and subsequently to reduce the interest that has fallen due and finally to reduce the principal and accrued interest. Troostwijk may, without being in default, refuse an offer for payment if the Client selects a different sequence for the allocation of the payment. Troostwijk may refuse full payment of the original claim, if at the same time, the open and accrued interest and charges are not paid.
- 7 In the event of the Client’s liquidation, bankruptcy, seizure, suspension of payment or debt restructuring, Troostwijk’s claims against the Client shall be immediately due and payable.
8. Complaints and Returns
8.1 If the Client files a complaint about the Report or another Performance, Troostwijk will only consider the complaint if it has been made in writing and it has reached Troostwijk within thirty (30) days, counting from the date on which the Report is dispatched or another Performance is delivered by Troostwijk. This period shall be regarded as an expiry period.
8.2 If the Client files a complaint about the invoice, Troostwijk will only consider the complaint if it has been made in writing and it has reached Troostwijk within twenty-one (21) days. This period commences on the date stated on the invoice. This period shall be regarded as an expiry period.
8.3 If the Client is a Natural Person, in derogation of article 8.1 and 8.2, complaints will be considered by Troostwijk if they are made in writing and within the set term, or if they are made within a reasonable period of time after the Client has discovered or should reasonably have discovered that the Performance does not comply with the Agreement.
8.4 The complaints must be submitted in writing, including a precise specification of the nature and grounds for the complaints. Complaints submitted in a manner other than in writing shall not be considered.
8.5 Complaints shall not suspend the Client’s purchase and payment obligations. Only if and insofar as the complaints submitted are found to be valid by Troostwijk, does this suspend the Client’s payment obligation under the relevant Agreement until such time as the complaint has been settled.
8.6 If the complaints are found to be valid by Troostwijk, Troostwijk will, where this is possible and can reasonably be expected of Troostwijk, still fulfil the Agreement.
8.7 If the Client is a Natural Person, articles 8.5 and 8.6 shall not apply.
8.8 Return of the invoice, the Report, the Deed or another Performance may only take place following prior written permission from Troostwijk. Troostwijk determines the conditions under which return occurs. Granting permission shall not mean that Troostwijk acknowledges any complaints or damage, nor may a right to compensation be deduced from this.
8.9 Returns without any written permission from Troostwijk shall not result in the Agreement being unilaterally suspended by the Client or dissolved in full or in part.
9. Force Majeure
9.1 In these General Terms and Conditions, force majeure is understood to mean any failure that cannot be attributed to Troostwijk as it cannot be attributed to fault, and is considered at its expense by virtue of the law, legal act or generally accepted views, that completely or partially prevents Troostwijk from fulfilling its obligation within the scope of the Agreement, or as a result of which compliance with the Agreement cannot be reasonably expected. In any case, these circumstances shall include, but are not limited to, acts of war, fire, operational disruptions, the loss of materials to be processed, strikes or work stoppages, sit-downs, sabotage, government restrictions and measures, unforeseen scarcity of raw materials and import or trade restrictions, illness of personnel, seizure, accidents, epidemics, mobilisation, natural disasters or time lost due to frost. This shall also include interruptions at suppliers or other third parties Troostwijk depends on for the performance of the Agreement, if and insofar as these circumstances make fulfilment of the Agreement impossible or unreasonably difficult.
9.2 If Troostwijk is prevented by force majeure, temporarily or otherwise, from performing the Agreement or part thereof, it shall be entitled, at its discretion, either to suspend the performance until the force majeure has ceased to exist, or to dissolve the Agreement in whole or in part without judicial intervention by means of a written notification, without being obliged to pay any compensation for costs, damage and/or interest. If the Client is a Natural Person, contrary to the previous sentence, the Agreement may only be dissolved during force majeure if this justifies its special nature or minor importance.
9.3 Troostwijk reserves the right to still perform the Agreement if fulfilment of the Agreement is not yet permanently impossible, in which case the Client shall not be entitled to dissolve the Agreement, therefore. The previous sentence does not apply to the Client who is a Natural Person.
9.4 Troostwijk shall also be entitled to invoke force majeure if the circumstance preventing performance or further performance arises after Troostwijk should have performed its obligations, unless the Client is a Natural Person.
9.5 Insofar as Troostwijk has already partially fulfilled its obligations under the agreement at the time of the occurrence of the force majeure or insofar as it will be able to fulfil these and independent value is attributed to that part of the obligations that has been fulfilled or will be fulfilled, Troostwijk shall be entitled to issue separate invoices for the parts already fulfilled or to be fulfilled. The Client shall be bound to pay this invoice as if it were a separate Agreement.
9.6 The Client may only invoke force majeure (non-imputable failure) if it informs Troostwijk thereof in writing as soon as possible, on submission of the necessary evidence. However, Troostwijk may, even if the Client has not complied with the provisions of the previous sentence, accept an appeal to force majeure on the part of the Client for reasons of fairness. Article 9.6 does not apply to the Client who is a Natural Person.
10.1 Except in cases of intent or deliberate recklessness on the part of Troostwijk, its employees, representatives and its managerial staff, Troostwijk shall not be liable and not obliged to pay any compensation for any direct or indirect damage, of any nature whatsoever, including (but not limited to) trading loss, consequential damage, damage to movable or immovable property, or to persons, both at the Client’s premises and at the premises of third parties that has arisen as a result of defects in the Performance and the work carried out, or as a result of defects in the Reports, Opinions and other data supplied by Troostwijk.
10.2 Nor does Troostwijk accept any liability for damage that arises due to the fact that the Performance is not applied in accordance with the applicable (statutory) regulations and/or European standards. Prior to the conclusion of the Agreement, the Client must check whether the services comply with the applicable (statutory) regulations and can be applied in the correct manner.
10.3 Under no circumstances shall Troostwijk be liable for damage suffered by the Client as a result of incorrect, incomplete or non-timely information or data in general, either from the Client or from third parties, irrespective of whether this information or data could generally be reasonably assumed to be correct. Nor shall Troostwijk under any circumstances be liable if the Client conceals information that is important for the value judgement.
10.4 Under no circumstances shall Troostwijk be liable for damage suffered by the Client as a result of the state of maintenance itself or any later non-visible defects of the valued assets.
10.5 In all cases in which Troostwijk is obliged to pay any compensation, this liability can in any case never exceed, at its discretion, either the invoice value of the Performance or work carried out as a result or in connection with which the damage was caused, with a maximum of EUR 22,000, or, if the damage is covered by an insurance policy of Troostwijk, up to the amount that is actually paid out by its liability insurer in this respect.
10.6 Every legal claim of the Client against Troostwijk shall expire after a period of twelve (12) months from the moment that both the damage and the alleged party liable for compensation become known.
10.7 The Client is obliged to take action to mitigate losses. Troostwijk shall be entitled to repair or limit the losses by remedying or improving the Performance carried out.
10.8 Employees of Troostwijk or suppliers, subcontractors or auxiliary persons engaged by Troostwijk for the performance of the Agreement may invoke all defences to be derived from the Agreement towards the Client, as if they themselves were party to the Agreement.
10.9 Troostwijk shall not be liable either for damage that is the result of use by third parties of every Performance (or of use for purposes other than those for which they were drawn up) delivered by Troostwijk.
10.10 The provisions in paragraphs 10.1 to 10.9 of this article relate both to the contractual and extra-contractual liability of the Client towards Troostwijk.
11.1 The Valuation and/or any other Performance is based on:
- visual inspection and recordings; and/or
- visual material; and/or
- (external) data; and/or
- key figures; and/or
- information provided by the Client or third parties designated by the Client; and/or
- other relevant sources;
and is carried out by one (1) or more experts, taking into account, among other things, location, construction type, zoning requirements and maintenance status at the time of Valuation.
11.2 Non-visible defects cannot be taken into account during a visual inspection, so that they are not included in the Valuation and Troostwijk shall not be liable in respect of these.
11.3 The Valuation and/or any other Performance is based on the assumption that, unless the Performance explicitly states otherwise, all possible government approvals or permits required with respect to the appraised object are present or can be obtained, respectively, without incurring extra costs.
11.4 It is also assumed that (aforementioned) laws, measures, regulations or directives do not result in any special public or private restrictions, which affect the value of the appraised object.
11.5 No account shall be taken of any grants, subsidies or public contributions, in any form or by any name whatsoever, which may be obtained or refunded, unless otherwise specified.
11.6 Unless otherwise stated, no special information will be collected in this respect, no extensive research will be carried out into previous titles of ownership, which would show any rights in rem of third parties other than those stated. Nor shall any other rights of third parties under the agreement that might be vested in the goods in question be investigated. In addition, no extensive planning research will be carried out, so that the information stated in the report must be regarded as indicative.
11.7 Unless stated otherwise, the Valuation and/or Performance shall not take into account any effects which could be harmful to the environment or health and which could occur when using one or more of the appraised items and which could cause the value of the items to decrease.
11.8 The Valuation is based on the appraised items as a whole. If items are to be valued separately or within a different composition, the value may deviate from the value stated in the Report.
11.9 The Performance is intended exclusively for the Client and may not be used in any form whatsoever in publications, circulars or documents intended for third parties, without prior written permission.
11.10 With due observance of the above, Troostwijk does not accept any responsibility towards parties other than the Client with respect to the content of the Performance. Any responsibility or liability for non-original Reports, Deeds or Opinions is expressly excluded by Troostwijk
11.11 Troostwijk will not disclose the Report, Deed or Opinion to third parties, unless this takes place at the request of the Client or with the approval of the Client of a request of Troostwijk. Disclosing the Report, Act or Opinion to third parties at the Client’s request does not alter the fact that Troostwijk does not accept any liability towards third parties.
12.1 The Client indemnifies Troostwijk against all possible claims by third parties, which this third party suffers or claims to suffer (partly) as a result of the use or application of a Performance delivered by or on behalf of Troostwijk.
12.2 The Client indemnifies Troostwijk against all possible claims by third parties who suffer damage within the context of the performance of the Agreement by Troostwijk. Indemnification also pertains to all damage and costs incurred or suffered by Troostwijk in connection with such a claim.
12.3 The Client indemnifies Troostwijk against all possible claims by third parties with respect to (damage as a result of) the use of drawings, calculations, materials, samples, models and other information supplied by or on behalf of the Client.
12.4 The Client indemnifies Troostwijk against (third-party) claims for losses incurred as a result of the fact that the Client did not provide Troostwijk with any data and/or information, either incorrect or incomplete.
12.5 The Client indemnifies Troostwijk, its employees and its suppliers, subcontractors or assistants engaged for the performance of the Agreement against any liability of third parties in connection with the performance of the Agreement by Troostwijk, insofar as those claims are more or different from those to which the Client is entitled vis-à-vis Troostwijk.
12.6 If the Client is a Natural Person, articles 12.1 to 12.5 shall not apply.
13.1 In the event of (premature) termination of the Agreement by the Client, before Troostwijk has started with the performance of the Agreement or before the Agreement has been completed, the Client shall be obliged to reimburse the costs associated with the preparation or performance of the Agreement, insofar as these are not included in Troostwijk’s wages.
13.2 Subject to article 13.1 of these General Terms and Conditions, Troostwijk shall also be entitled to a reasonable part of Troostwijk’s wages in the event of (premature) termination of the Agreement by the Client, to reimbursement of additional costs that Troostwijk has already incurred, and to reimbursement of costs arising from possible cancellation by third parties engaged (such as – among other things – the possible costs relating to subcontracting). Whether Troostwijk’s wages are due and payable depends on the completion or on the expiry of the term of the Agreement.
13.3 If an Agreement under which a fixed fee has been agreed is (prematurely) terminated by the Client, Troostwijk shall be entitled, contrary to articles 13.1 and 13.2, to charge the Client the full amount of the agreed price. If the Client is a Natural Person, this article 13.3 shall not apply.
13.4 In the event that one of the parties is declared bankrupt, applies for a suspension of payments or discontinues its business, the other party shall have the right to terminate the agreement prematurely without observing a notice period.
14. Suspension and dissolution
14.1 Without prejudice to articles 5.4, 7.3 and 9.2 of these General Terms and Conditions, Troostwijk shall at all times have the right to suspend its obligations under the Agreement or to dissolve the Agreement, without prior notice of default, by means of a written notification and with immediate effect, in whole or in part, if:
- a) the Client fails to comply with any of its obligations, or fails to do so in a timely or correct manner;
- b) the Client ceases or transfers its business or an important part thereof, including the contribution of its business to a company to be established or already existing, or changes the purpose of its business;
- c) the Client is declared bankrupt, waives its rights, applies for a suspension of payments, or if all or part of its property is seized or it otherwise proves to be insolvent, before or during the performance of the Agreement;
- d) the Client offers (an employee of) Troostwijk bribes or other items of any monetary value in order to influence the result of the Valuation or expertise, before or during the performance of the Agreement;
- e) the tax authorities exercise their right of seizure, before or during the performance of the Agreement;
- f) the Client is dissolved before or during the performance of the Agreement or, if the Client who is a Natural Person dies before or during the performance of the Agreement;
- g) the Client is placed under administration, guardianship, mentorship or supervision, before or during the performance of the Agreement;
- h) the Client’s business otherwise ceases; or
- i) prior to or during the performance of the Agreement, the Client also fails to comply with any statutory provision or any provision set out in the General Terms and Conditions.
In these cases, any claim that Troostwijk has or will have against the Client shall be immediately due and payable in full.
14.2 The damage Troostwijk suffers as a result of the suspension or dissolution as referred to in the first paragraph, including loss of profit, shall be immediately payable and will be compensated by the Client.
14.3 If the Client is a Natural Person, any right of suspension of Troostwijk arising from these General Terms and Conditions shall not apply insofar as this right of suspension grants Troostwijk a more extensive power of suspension than it is entitled to pursuant to the law.
15.1 Both Parties are subject to a duty of confidentiality with respect to all information provided by Troostwijk or by the Client for the purpose of the Agreement – with the exception of third parties engaged by Troostwijk in the performance of the Agreement – unless the Parties agree otherwise in writing or if the content, scope or purpose of the information dictates otherwise, or if disclosure takes place on the basis of a statutory obligation or legal order.
15.2 This duty of confidentiality does not relate to:
- a) information/data that was already accessible to the public at the time it became available to one of the Parties;
- b) information/data that has become accessible to the public after it became available to one of the Parties, unless this is the result of either Party’s failure to comply with its obligations under this article; or
- c) information/data lawfully either Party obtained or became aware of before it was made available to the other Party.
15.3 Troostwijk is obliged to impose the obligations arising from the above paragraphs on any third parties engaged for the performance of the Agreement.
16. Personal Data
16.1 When Troostwijk processes personal data of the Client it has received from the Client within the scope of (the performance of) the Agreement, it shall process this personal data in a proper and careful manner in accordance with applicable national and international legislation pertaining to the protection of personal data. The personal data provided will never be used by Troostwijk for (commercial) activities on behalf of Troostwijk and/or third parties. Troostwijk shall keep the personal data provided secret and shall never provide it to any third party – with the exception of third parties engaged by Troostwijk in the performance of the Agreement – or disclose it without the Client’s written permission or by order of the Client, unless it is disclosed on the basis of a legal obligation or court order.
16.2 Troostwijk is obliged to take appropriate technical, organisational and procedural (security) measures to protect the personal data provided by the Client against loss, theft and/or any form of unlawful processing, in the broadest sense of the word. In this context, Troostwijk shall ensure, among other things, that when using automated systems, the personal data is properly protected from other data and that a suitable security level is guaranteed. In addition, Troostwijk will take the necessary measures to avoid unnecessary collection and/or further processing of the personal data provided by the Client.
16.3 If legislation and/or regulations so require, Troostwijk shall be obliged to report so-called data breaches to the Client and to cooperate in informing the relevant authorities and/or data subjects.
16.4 All obligations arising from this article shall also apply with respect to the employees of Troostwijk and/or the (auxiliary) persons who carry out work for Troostwijk (employed or otherwise). Troostwijk will oblige the aforementioned employees and/or (auxiliary) persons to maintain confidentiality with respect to the personal data of which they become or may become aware (through the Client).
17. (Intellectual) property
17.1 Every offer, Quotation, Opinion or Performance, including any associated budgets, calculation models, plans, catalogues or other Documents, shall at all times remain the industrial and intellectual property of Troostwijk. The Client and third parties engaged shall not infringe on, or make use of, the industrial and intellectual property rights attached to the offer, Quotation, Opinion or Performance in, among other things, publications, circulars or documents intended for third parties, without prior written permission. The Client indemnifies Troostwijk against claims from third parties in this respect, unless the Client is a Natural Person.
17.2 If the Client has failed imputably in the performance of its obligations arising from the Agreement, it shall not be entitled to use, reproduce, store in an automated database or make public a document as referred to in article 17.1 of these General Terms and Conditions, in any form or in any way whatsoever, including electronically, mechanically, by means of photocopying, digital recording, without prior written permission from Troostwijk.
17.3 Ownership of the Performance is expressly reserved by Troostwijk until full payment has been made, including the reimbursement of all costs and interest as referred to in articles 7.4 and 7.5 of these General Terms and Conditions, which the Client owes for the services performed or to be performed pursuant to the Agreement, as well as compensation for failure on the part of the Client to comply with the said Agreement.
If the Client fails to fulfil its obligations towards Troostwijk, the Client or third parties shall not be permitted to make use of the entire or partial content of the Performance in any way. Troostwijk will claim the said documents as its property and these must be returned to Troostwijk immediately upon first request, without prejudice to other legal measures available to Troostwijk to guarantee its rights.
17.4 If the Client fails to comply with any obligation towards Troostwijk laid down in this article, it shall owe an immediately payable penalty of EUR 1,000 (one thousand euros) per (part of a) day or event, without prejudice to Troostwijk’s right to recover the damage it has actually suffered from the Client.
18. Limitation period / lapse
18.1 Insofar as these General Terms and Conditions do not stipulate otherwise, rights of action and other powers of the Client on any account towards Troostwijk within the scope of the provision of Performances by Troostwijk shall lapse, in any case after twelve (12) months from the time at which the Client became aware or could reasonably have become aware of the existence of these rights and powers.
19. Other provisions
19.1 The Client shall not transfer or outsource its rights and obligations arising from the Agreement, either in full or in part, to third parties without prior written permission from Troostwijk. Troostwijk shall be entitled to transfer its rights and obligations under the Agreement with the Client to a third party to be designated by Troostwijk. The Client hereby grants irrevocable and unconditional permission in this respect, unless the Client is a Natural Person. In that case, advance permission for the transfer of obligations shall apply only to the extent that the Client may dissolve the Agreement, Troostwijk is liable towards the Client for compliance by the third party, or the transfer takes place in connection with the transfer of a company to which both the obligations and the related rights belong.
19.2 In the event of a conflict between the provisions of these General Terms and Conditions and the provisions of the Agreement, the provisions of the Agreement shall prevail over the provisions of the General Terms and Conditions.
19.3 In the event of a dispute concerning the interpretation of these General Terms and Conditions, the Dutch version shall prevail, even if the Client has received a version in another language.
19.4 If and insofar as any provision of these General Terms and Conditions cannot be invoked on grounds of reasonableness and fairness or its unreasonably onerous nature, the relevant provision shall be given a corresponding meaning in terms of contents and tenor to the extent possible, in such manner that it can be invoked. The nullity, voidability or any other ineffectiveness of any provision shall not result in the ineffectiveness of these General Terms and Conditions.
20. Applicable law
20.1 Dutch law applies to the Agreement between Troostwijk and the Client and all related agreements or agreements that arise therefrom, as well as to these General Terms and Conditions.
21. Dispute settlement
21.1 All disputes that may arise as a result of the Performance or further Agreements resulting therefrom shall be settled in accordance with the Rules of the Netherlands Arbitration Institute with due observance of the following provisions:
- The arbitration tribunal shall consist of three (3) arbitrators and, in the event of an interest of less than EUR 100,000 (one hundred thousand euros), of one (1) arbitrator.
- In case of an arbitration tribunal consisting of three (3) arbitrators, the arbitrators shall be appointed in such a manner that each of the parties appoints one (1) and the third shall be appointed jointly by the two (2) arbitrators already appointed. If the arbitration tribunal consists of one (1) arbitrator, the appointment shall be made according to the rules of the Netherlands Arbitration Institute.
- The place of arbitration shall be Amsterdam.
- The procedure shall be conducted in the Dutch language.
- It shall not be possible to combine the arbitration proceedings with any other arbitration proceedings as provided for in Article 1046 of the Dutch Code of Civil Procedure.
21.2 The dispute settlement formulated in article 21.1 of these General Terms and Conditions shall be applicable, unless Troostwijk, either as claimant or as respondent, chooses that the dispute will be settled by the civil court. Troostwijk may exercise the authority set out in the previous sentence by declaring this in writing within fourteen (14) days after it has been invited to do so by the other Party. If Troostwijk opts for settlement by the civil court, the civil court within whose jurisdiction Troostwijk is established shall be exclusively competent.
21.3 If the Client is a Natural Person, the Client shall have a term of one (1) month after Troostwijk has appealed to the clause in writing to the Client, to opt for settlement of the dispute by the court competent by law.
ADDITIONAL TERMS AND CONDITIONS APPLICABLE TO TROOSTWIJK TAXATIES, APRESA AND TROOSTWIJK EXPERTISES
22.1 In the event the Client concludes an Agreement with Troostwijk Taxaties, the provisions of articles 23, 24.1, 24.2 and 24.4 of the General Terms and Conditions, as well as the provisions of the Agreement, shall apply in addition to the provisions of articles 1 to 21 of the General Terms and Conditions.
22.2 In the event the Client concludes an Agreement with Apresa, the provisions of articles 24.2 and 24.3 of the General Terms and Conditions, as well as the provisions of the Agreement, shall apply in addition to the provisions of articles 1 to 21 of the General Terms and Conditions.
22.3 In the event the Client concludes an Agreement with Troostwijk Expertises, the provisions of articles 25 and 26 of the General Terms and Conditions, as well as the provisions of the Agreement, shall apply in addition to the provisions of articles 1 to 21 of the General Terms and Conditions.
22.4 In the event of inconsistency between the first-mentioned articles and the last-mentioned articles, the provisions of the last-mentioned articles shall prevail.
23. Subscription Agreement (valuations)
23.1 A Subscription Agreement is entered into for the period as set out in that Subscription Agreement. Unless terminated in good time in accordance with article 23.2 of these General Terms and Conditions, it shall be deemed to have been tacitly and automatically renewed for the same period under the same conditions and stipulations as previously agreed between the Parties. With respect to a Client who is a Natural Person, contrary to the previous sentence, extension of the fixed-term Subscription Agreement is entered into for three (3) months and extension of the Subscription Agreement for an indefinite period may be terminated by the Client with a notice period of one (1) month. Troostwijk reserves the right to renegotiate the terms and conditions after tacit renewal.
23.2 Termination of a Subscription Agreement must take place by registered letter before the end of the agreed contract period with a minimum notice period of three (3) months. If the Client is a Natural Person, termination of a Subscription Agreement must be done orally or in writing before the end of the agreed contract period with a minimum notice period of one (1) month.
23.3 If the Subscription Agreement is terminated prematurely by the Client, the Client shall not be entitled to a refund of the amount already reserved by Troostwijk for the purposes of the Revaluation.
24.1 In the event of a Valuation of a separate apartment within an Association of Owners, this shall not automatically lead to the occurrence of underinsurance of both the valued object and the entire property of the Association of Owners concerned. Therefore, Troostwijk shall not be liable for the consequences of possible underinsurance if no assignment has been given for a Valuation of the entire property of the Association of Owners concerned.
24.2 Within the scope of the Agreement, a Valuation report is not considered a (technical) inspection report, but only a financial Valuation. Therefore, no in-depth investigation is carried out into the (structural or technical) condition of the valued items. Troostwijk assumes that these items function properly.
24.3 Statements from Apresa, in writing and/or orally, concerning the (presumed) designer, creator, writer, origin, dating, age, authenticity, origin, state or estimated value shall never imply a guarantee given by Apresa.
24.4 Insofar as the Valuation is related to an application for financing, Troostwijk Taxaties guarantees that it is not involved in the underlying (sales) transaction.
25.1 In the case of a Performance in the field of appraisal, payment may be made by means of a deed of assignment to be signed by the Client.
26. Dispute settlement
26.1 All disputes that may arise as a result of a Performance in the field of appraisal shall be settled by the Complaints and Dispute Resolution Committee of the Netherlands Institute of Register Experts (NIVRE).
26.2 If the Client is a Natural Person, the Client shall have a term of one (1) month, after Troostwijk has appealed to the clause in writing to the Client, to opt for settlement of the dispute by the court competent by law.