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SAVILLS NETHERLANDS GENERAL TERMS AND CONDITIONS

1.          Definitions

1.1.       The definitions given below have the following meanings:

General Terms and Conditions: these general terms and conditions of Savills, as they read from time to time;

Services: the real estate advisory services provided by the Savills Entity to the Client under the terms of the Engagement:

• performing real estate valuations ; and/or
• advising, including performing due diligence, on real estate; and/or
• brokering for the purpose of leasing or renting and buying or selling real estate; and/or
• advising and assisting in the purchase and sale of real estate;

and as described in the Engagement Confirmation;

NRVT: the Dutch Register of Real Estate Valuers;

NVM: the Dutch Cooperative Association of Real Estate Agents and Valuers;

Engagement: the services agreement, including a mandate and brokerage activities (where applicable), between the Client and the Savills Entity consisting solely of the Engagement Confirmation and these General Terms and Conditions;

Engagement Confirmation: the written confirmation (including in digital form) from the Savills Entity to the Client containing the arrangements between the Parties regarding the Services, which is governed by these General Terms and Conditions;

Client: the party or parties entering into an  services agreement  – including a mandate and brokerage activities (where applicable) – with the Savills Entity and for which the Savills Entity performs the Services;

Force Majeure: any circumstance beyond the control of the Party claiming Force Majeure, even if this circumstance was already foreseeable at the time the Engagement was concluded, which temporarily or permanently prevents compliance with the Engagement or its performance (in whole or in part) and which cannot reasonably be avoided or prevented, including (but not limited to): epidemics, pandemics and governmental measures resulting from them, natural disasters, fire, floods, war, danger of war, war damage, mobilisation, martial law and other disturbances, riots, insurrection, terrorism, governmental regulations, sickness or shortage of personnel, strikes, disruptions in Savills' business (including (as a result of) power failures and systems failures), cyber-attacks or cyber-crime, and failures on the part of suppliers, auxiliary persons or auxiliary businesses. Force Majeure will never be understood to mean inability to pay;

Parties: the Client and the Savills Entity jointly;

RICS: Royal Institution of Chartered Surveyors;

Savills: commercial real estate advisor Savills Netherlands consisting of Savills Agency B.V., Savills Consultancy B.V. and Savills Investments B.V., as well as any other or future entities jointly constituting a group with the aforementioned entities within the meaning of Article 2:24b of the Dutch Civil Code and making use of these General Terms and Conditions;

Savills Entity: an entity that is part of Savills and with which the Client enters into an Engagement; and

Confidential Information: any and all information regarding a Party or its affiliated business or the activities, services or processes of that Party, including (but not limited to) information regarding clients and other contacts and data or other information generated in the course of business. Confidential Information of Savills in any event includes all quotations, documents, valuation and other reports and the Engagement Confirmation provided or made available by the Savills Entity to the Client in the context of the Engagement. Communications between the Parties relating to the performance of the Engagement also qualify as Confidential Information. Data are in any case considered Confidential Information if they are designated as such by one of the Parties.

2.          Applicability of General Terms and Conditions

2.1.       These General Terms and Conditions apply to all Services that the Savills Entity will provide and has provided to the Client and to the Engagement Confirmations, and they form part of each Engagement.

2.2.       These General Terms and Conditions also apply to all future Services that the Savills Entity will provide to the Client and to future Engagement Confirmations, on the understanding that Savills may amend these General Terms and Conditions from time to time, meaning that the amended General Terms and Conditions apply to any future Services that the Savills Entity will provide to the Client and to any future Engagement Confirmations. 

2.3.       Deviations from or additions to these General Terms and Conditions and/or the Engagement are only binding if and as far as agreed between the Parties in the Engagement Confirmation and they only apply to the Engagement for which the Savills Entity has agreed to the deviation from or addition to these General Terms and Conditions and/or the Engagement.

2.4.       Any general terms and conditions of the Client do not apply. The same applies to sectoral terms and conditions.

3.          The Engagement and the conclusion of the Engagement

3.1.       The Engagement is concluded when (i) the Savills Entity has received the Engagement Confirmation signed by the Client or, if earlier or in the absence of an Engagement Confirmation (signed by the Client), (ii) the Savills Entity commences performance of the Services.

3.2.       Regarding the conclusion of an Engagement, or in case of deviation(s) from or addition(s) to these General Terms and Conditions as referred to in Clause 2.3, the Savills Entity may only be represented by the person or persons authorised to do so, as listed in the company register of the Dutch Chamber of Commerce.

3.3.       Engagements are solely and exclusively accepted and performed by the Savills Entity, even if the Client explicitly or tacitly intends to have a specific (natural) person perform the Engagement.

3.4.       Each Engagement results in a separate (i.e. individual) engagement.

4.          Duration of the Engagement

4.1.       In case of a continuing contract (i.e. if the Engagement is entered into for a definite or indefinite period of time), the Engagement is entered into for the duration specified in the Engagement Confirmation.

4.2.       Except under the grounds listed in Clause 12, the Engagement cannot be terminated (opgezegd), or wholly or partially dissolved (ontbonden) by the Client.

5.          Performance of the Services

5.1.       The Savills Entity performs the Services as set out in the Engagement Confirmation, but never guarantees the achievement of any result envisaged by the Client.

5.2.       In performing the Services, the Savills Entity must exercise the reasonable care and skill generally to be expected of a provider of services similar in scope, nature and complexity to the Services.

5.3.       The Client shall provide any cooperation and information that is necessary, as far as the Savills Entity is concerned, for the correct and timely performance of the Engagement and/or requested by third parties (including auditors) in the context of the Engagement. The Client warrants the accuracy, comprehensiveness and reliability of information provided by the Client or a third party to the Savills Entity and/or third party and must notify the Savills Entity as soon as possible upon becoming aware that information appears to be inaccurate, incomplete or unreliable. The Client agrees that the Savills Entity will rely on the comprehensiveness, accuracy and reliability of information provided and is not liable for any actions taken by the Savills Entity in response to and on the basis of such information.

5.4.       The Client must refrain from any act or omission that may impede and/or prevent the correct and timely performance of the Engagement by the Savills Entity.

5.5.       Any time limits specified by the Savills Entity for performance of the Services will at no time be regarded as strict deadlines. The mere fact that the Savills Entity exceeds any specified time limit will not constitute a default.

5.6.       The Savills Entity may suspend performance of the Services if the Client fails to perform one or more of its obligations under the Engagement or fails to perform any other agreement with a Savills entity, until the Client has fully performed the relevant obligation. This Clause 5.6 applies in full in cases where the Client consists of multiple parties and only one of the parties fails to perform one or more of its obligations under the Engagement or any other agreement with any Savills entity.

6.          Use of third parties (including auxiliary persons)

6.1.       The Savills Entity may use third parties in the performance of the Engagement, including Savills group entities. The Savills Entity will consult with the Client in advance to the extent possible whenever it wishes to use third parties. The provisions of this last sentence do not apply to the use of Savills group entities.  

6.2.       Using third parties as referred to in Clause 6.1 expressly does not include the use of third parties for the provision of tax or legal services. If the Client wishes to make use of such services, it must engage third parties for such purpose itself.

6.3.       Unless otherwise agreed in the Engagement Confirmation, the Savills Entity is not liable to the Client for any damage, on any basis whatsoever, suffered by the Client and attributable to third parties, including auxiliary persons, used by the Savills Entity. Clause 10 applies in full.

7.          Fees and costs

7.1.       The Client shall pay the fee specified in the Engagement Confirmation or elsewhere in writing (including by email) (the Fee) for the performance of the Services, as well as any costs referred to in Clause 7.2.

7.2.       Fees are in euros and do not include VAT, levies and other surcharges. The Fee, unless otherwise indicated, expressly does not include disbursements, travel expenses, advertising and printing costs, banking costs, costs of using third parties as referred to in Clause 6.1 that the Client is obliged to pay to Savills, or any other costs that Savills (or the third parties used by it) reasonably incur(s) for the benefit of the Client in the performance of the Services and/or in connection with the Engagement.

8.          Invoicing and payment

8.1.       Invoicing will take place as stipulated in the Engagement Confirmation. The Client agrees to electronic invoicing.

8.2.       Services performed may be invoiced on an interim basis, if the performance of the Engagement extends over a period longer than one month.

8.3.       Unless otherwise agreed in the Engagement Confirmation, a payment term of 14 (fourteen) calendar days from the invoice date shall apply. Payment must be made in euros and in accordance with the instructions as stated on the invoice.

8.4.       The Savills Entity may at any time require the Client to make an advance payment. Any advance payment received will be offset against the final invoice at the end of the Engagement.

8.5.       Objections regarding an invoice must be made in writing (including by email) to the Savills Entity and must be received by Savills Entity within 10 (ten) calendar days of the invoice date. After the expiry of this period, the Client is deemed to have accepted the invoice. An objection as referred to in this Clause 8.5 does not suspend the Client's payment obligation. If the validity of the objection is confirmed, the Savills Entity will credit any amount due to the Client.

8.6.       The Client may not set off any amounts it is obliged to pay the Savills entities, including the Savills Entity, whether under the terms of the Engagement or otherwise, against any invoice or apply a discount to such invoice.

8.7.       At the Savills Entity's first request, the Client must provide security for the timely and correct performance of its payment obligations under the Engagement in a manner to be determined by the Savills Entity if, on the basis of facts and circumstances, there is reasonable doubt on the part of the Savills Entity as to whether the Client will be able to fulfil these obligations in a timely and proper manner.

8.8.       If payment is not made within the strict payment term specified in Clause 8.3, the Client will be deemed to be in default by operation of law and any amount owed by the Client will become immediately due and payable – without any further demand or notice of default being required by the Savills Entity – as well as the statutory commercial interest applicable at that point on the remaining amount owed by the Client, calculated from the first day after the expiry of the agreed payment term referred to in Clause 8.3.

8.9.       All judicial and extrajudicial costs incurred by Savills / a Savills entity for the collection of outstanding payments will be borne by the Client, the minimum amount being EUR 500 (five hundred euros).

9.          Complaints

9.1.       In line with the RICS "Conduct and Disciplinary Procedures" guidelines, Savills operates a formal complaints procedure. This complaints procedure applies to all Engagements between a Savills Entity and the Client. Complaints should be addressed to l.vandersluijs@savills.nl. In addition, certain persons affiliated with Savills are members of the RICS, NRVT and/or NVM. These organisations have their own rules of conduct, regulations and complaints procedures.

9.2.       Under no circumstances shall a complaint entitle the Client to suspend the performance of any obligation arising from the Engagement.

9.3.       Without prejudice to the provisions of Savills' formal complaints procedure referred to in Clause 9.1, all legal claims and defences of the Client against the Savills Entity will lapse after the expiry of a period of 12 (twelve) months from the commencement of the day following the day on which the Client became aware, or could reasonably have become aware, of the damage and of the Savills Entity as the liable party.

10.        Liability

10.1.     Except as otherwise provided in the Engagement Confirmation, neither Savills nor any Savills entity, including the Savills Entity, will be liable to the Client for any damage suffered by the Client as a result of any failure in the performance of the Engagement, whether or not it is attributable to the Savills Entity, or on the basis of tort and/or any other legal basis, except in the case of intentional and/or deliberate recklessness on the part of Savills' management.

10.2.     Neither Savills nor any Savills entity, including the Savills Entity, will be liable for indirect damages, including (but not limited to) lost profits and sales of the Client, lost savings, reputational damage, loss of goodwill or opportunity, business interruption damage and damage resulting from third party claims (including regulatory fines).

10.3.     Notwithstanding Clauses 10.1 and 10.2 and unless otherwise provided for in the Engagement Confirmation, the overall liability of Savills and/or any Savills group entity, including the Savills Entity, will in all cases, and on any ground, be limited in each case to not more than once the Fee, unless the damage eligible for compensation equals or exceeds the amount of EUR 1,000,000 (one million euros), in which case the overall liability will be limited to a maximum amount of EUR 1,000,000 (one million euros).

10.4.     The Client indemnifies the Savills Entity and persons affiliated with Savills against any and all third party claims, including the costs of legal assistance, which are connected with the Services or any failure in the performance by the Client under the Engagement.

10.5.     Any liability on whatever ground of Savills entities and the persons affiliated with the Savills entities, including the Savills Entity, is expressly excluded. In these General Terms and Conditions, persons affiliated with the Savills entities include employees, directors, trainees, temporary workers and freelancers. All clauses in these General Terms and Conditions are also stipulated for the persons associated with the Savills entities, including the Savills Entity. The preceding sentence is an irrevocable and gratuitous third-party clause for the benefit of the persons affiliated with the Savills entities.

11.        Force Majeure

11.1.     In the event of Force Majeure on the part of the Savills Entity, it may, at its discretion, suspend the performance of its obligations under the Engagement without the need for judicial intervention and without the Savills Entity being liable to pay any form of damages or compensation. The Savills Entity must promptly notify the Client of the Force Majeure situation.

11.2.     In the event of Force Majeure and in addition to the provisions in Clause 11.1, the Savills Entity may dissolve (ontbinden) the Engagement in whole or in part, i.e. the part which the Savills Entity is prevented from performing (in whole or in part) by the Force Majeure event.

12.        End of the Engagement

12.1.     The Engagement ends on:

• completion;
• where applicable, the expiry of the term for which the Engagement was entered into as provided in Clause 4.1; or
• termination (opzegging) or dissolution (ontbinding) under the provisions of this Clause 12.

12.2.     The Savills Entity may at all times terminate (opzeggen) the Engagement for reasons of its own, by giving written notice and subject to a 30 (thirty) calendar day notice period, without being liable to pay any compensation to the Client.

12.3.     Unless provided for in the Engagement Confirmation, and subject to payment of the fee specified in the Engagement Confirmation, the Client may not terminate (opzeggen) the Engagement (regardless of whether it has been entered into for an indefinite term). This Clause 12.3 does not apply if there is a mandate agreement as referred to in Article 7:414 of the Dutch Civil Code, but only for that part of the Engagement that relates to mandate.

12.4.     Each Party may dissolve (ontbinden) the Engagement in whole or in part and with immediate effect by giving written notice, without judicial intervention and without notice of default, and without being liable to pay damages and/or costs if:

1. the other Party imputably fails in the performance of the Engagement and performance is permanently impossible, or, to the extent that performance is still possible, a reasonable period for performance of no less than 30 (thirty) calendar days has been given by written notice of default but the Engagement is not performed within this period. For the avoidance of doubt: in the event of Force Majeure, there is no question of imputability;
2. the other Party is declared insolvent (or applies for insolvency) or applies for a moratorium, provisional or not, and this is granted or if a private settlement has been offered to creditors; or
3. the other Party ceases, dissolves or liquidates its business, continues in another legal form, transfers its registered office to another country, or direct or indirect control is transferred to a third party; or
4. the property of the other Party is seized in execution at the expense of such Party or a material part of the assets of such Party is sold (or expropriated).

12.5.     In addition to the provisions in Clause 12.4, the Savills Entity may also dissolve (ontbinden) the Engagement, in whole or in part, with immediate effect, by means of a written notice, without judicial intervention and without notice of default and without being liable for compensation for damages and/or costs if:

1. in the reasonable opinion of the Savills Entity, the Client has caused or will cause damage to the reputation of Savills or any of the Savills entities; or
2. the Client acts in breach of applicable laws and regulations in the context of the Engagement, including in particular regulations relating to money laundering, corruption and/or sanctions, or causes the Savills Entity to act or potentially act in breach of applicable laws and regulations; or
3. there is a Force Majeure on the part of the Client that lasts, or is reasonably expected to last, longer than 30 (thirty) calendar days.

This Clause 12.5 applies in full in cases where the Client consists of several parties and one of the parties commits an act as described under a to c above.

12.6.     In the event of dissolution (ontbinding), all claims (including Fees because of the Services provided, regardless of whether they have already been invoiced) that the Savills Entity has against the Client, for whatever reason, become immediately due and payable, without any demand or notice of default being required and without prejudice to the other rights that the Savills Entity has under the Engagement and/or applicable laws and regulations. Dissolution under Clauses 12.4 and 12.5 is without prejudice to the Savills Entity's right to claim full compensation for damage suffered by the Savills Entity.

12.7.     In case of dissolution (ontbinding) of the Engagement, any obligations already performed and any related payment obligations will not be reversed. Article 6:277 of the Dutch Civil Code does not apply in case of dissolution by the Client.

13.        Confidentiality

13.1.     The Parties must keep all Confidential Information they obtain or generate during the performance of the Engagement, including the existence and content of the Engagement itself, confidential and they may not disclose or provide it, in whole or in part, in any form whatsoever, to third parties and they may not use it for purposes other than the performance of the Engagement or to comply with applicable laws and regulations, except as provided in this Clause 13.

13.2.     The duty of confidentiality provided in Clause 13.1 does not apply:

1. if disclosure or provision of Confidential Information is required by applicable laws or regulations or on the basis of a court order, or in response to an order or instruction from a supervisory authority;
2. in the case of prior written consent of the other Party; or
3. if Confidential Information is disclosed to professional consultants (including lawyers and auditors), subject to an equivalent duty of confidentiality as referred to in Clause 13.1 to the extent not yet prescribed by law.

13.3.     Savills / the Savills Entity may disclose that it is performing or has performed the Engagement and use the Client's name for publicity purposes or during pitches. However, the Savills Entity may not disclose, or use for pitches, any information about transactions or potential transactions that are not yet in the public domain, without the Client's prior written consent, which consent may not be unreasonably withheld, delayed or conditioned.

13.4.     In addition to the provisions in Clause 13.3, the Savills Entity may share Confidential Information with third parties as referred to in Clause 6, where necessary to perform the Engagement.

13.5.     The Savills Entity, or Savills, may use information and data acquired or generated in connection with the Engagement for internal purposes, including analytical purposes. Savills retains information and data acquired or generated in connection with the Engagement indefinitely, unless laws and/or regulations require Savills to delete such data and information after a certain time.

14.        Data processing and protection

14.1.     Except as provided in the Engagement Confirmation, each of the Parties must act as an independent controller in processing the personal data in the context of the Engagement. Each Party must comply with its respective obligations under applicable data processing and data protection laws during the Engagement, including the General Data Protection Regulation. The Savills Entity will not be liable for the consequences resulting from any act or omission of the Client in complying with the data processing and protection laws relating to personal data it has provided to the Savills Entity. 

14.2.     For the manner in which the Savills Entity processes personal data provided by the Client in the context of the Engagement, please refer to the Savills Privacy Notice, which can be accessed in English via https://www.savills.co.uk/footer/privacy-policy.aspx

15.        Intellectual property

15.1.     The Client does not claim any intellectual property rights: the Savills Entity and/or its licensors retain all intellectual property rights and/or similar rights vested in and/or related to works (such as advice, models, techniques, reports, dashboards and online tools) created by the Savills Entity in the performance of the Engagement.

15.2.     The provision by the Savills Entity to the Client of any works referred to in Clause 15.1 may not be construed as an express or implied licence to use, exploit or release to third parties the intellectual property rights and/or similar rights to third parties unless the Savills Entity has given its express prior written consent to do so.

15.3.     The Client must refrain from any act that impairs or is likely to impair any intellectual property right, distinctiveness or reputation or goodwill of Savills and/or the Savills Entity, its works and/or – if applicable – its licensors, including, but not limited to, (i) removing or altering any figurative marks affixed to the works; and/or (ii) altering or reproducing the works.

16.        Compliance

16.1.     The Client warrants that it and its shareholders, directors, officers, employees and/or other affiliated persons (i) are not, nor have been, involved in any way in money laundering or terrorist financing as described in the Money Laundering and Terrorist Financing Prevention Act (Wet ter voorkoming van witwassen en financieren van terrorisme or Wwft) and (ii) are not acting or have not acted in any way contrary to the UK Bribery Act or the US FCPA.

16.2.     The Client must provide the Savills Entity with all information it reasonably requires and the necessary cooperation in order to fulfil its obligations arising from the laws and regulations referred to in Clause 16.1, client identification laws and regulations and any other economic or financial sanctions, trade embargoes or other trade restrictions.

16.3.     During the term of the Engagement, the Parties must refrain from acts or omissions in breach of the provisions of laws and regulations referred to in Clause 16.1 and any other economic or financial sanctions, trade embargoes or other trade restrictions.

17.        Miscellaneous

17.1.     The invalidity of one or more of the provisions of these General Terms and Conditions does not affect the validity of any other provisions or the Engagement. If any provision of these General Terms and Conditions is void, voidable, invalid, non-binding or unenforceable for whatever reason, the Parties will, in consultation with one another, replace it with a provision that approximates the void, legally invalid or unenforceable provision as closely as possible in terms of content and purport.

17.2.     If the Client consists of multiple parties, they will each be jointly and severally liable for the Engagement, including for the payment of invoices. Conversely, if the Savills Entity is one of the contractors (i.e. only in cases of co-mandate), the Savills Entity will only be liable for that part of the Engagement for which the Savills Entity is responsible.

17.3.     The Savills Entity may only waive rights by means of a written notice to that effect. The Savills Entity's failure to exercise or delay in exercising any of its rights and/or remedies under the Engagement or applicable laws and regulations may not be regarded as a waiver of that right or of any other right under the Engagement or applicable laws and regulations.

17.4.     The Client may not assign its rights and/or obligations under the Engagement to third parties except with the Savills Entity's prior written consent. This provision also excludes the transfer of claims within the meaning of Article 3:83(2) of the Dutch Civil Code.

17.5.     The Client's right to full or partial dissolution (ontbinding) under Article 6:265 of the Dutch Civil Code is expressly excluded. Articles 7:401 to 7:405, 7:407 to 7:411, and 7:426 of the Dutch Civil Code do not apply.

17.6.     Clauses 1, 2.1 to 2.4, 6.3, 9.3, 10, 12.6 and 12.7, 13, 15, 17 and 18 will not be affected by any notice to terminate (opzeggen) or any other ending of the Engagement and will continue to apply in full.

17.7.     These General Terms and Conditions have been drawn up in Dutch and in English. In case of a conflict between the English and the Dutch text, the Dutch text will be binding. The Dutch version of the General Terms and Conditions will be shared with the Client on its first request.

18.        Applicable law and dispute resolution

18.1.     All Engagements, these General Terms and Conditions and all ensuing or related contractual and non-contractual obligations are governed by Dutch law. The rules of conflict of private international law are explicitly excluded.

18.2.     All disputes regarding, arising out of or in connection with an Engagement, these General Terms and Conditions or any contractual or non-contractual obligations will be brought exclusively before the competent court in Amsterdam.