General Terms and Conditions Retail Property Management (RPM) B.V.
Defenitions and applicability
1.1 In the present general terms and conditions, the following terms will be defined as set out below:
– T&C: the present general terms and conditions;
– Services: all the services provided by RPM, including – but not limited to – those listed below, connected with the management of real property in general and real property portfolios for retail chains located in The Netherlands in particular. The term ‘management’ must be construed in the widest sense of that word, so that it at any rate includes: taking out a lease on, letting, buying and selling, charging and transferring real property and all the tasks connected with the conclusion of agreements for that purpose. The services provided by RPM include – but are not limited to – the following:
- a. acquiring new locations for retail outlets or relocation, including an inventory of the market;
- b. in the event of relocation: arranging for agreements to buy out existing lease contracts or agreements to sell lease rights for a takeover sum;
- c. negotiating on new lease or sub-lease contracts if the current contracts are for an indefinite period;
- d. conducting lease price negotiations on the basis of section 7:303 of the Netherlands Civil Code and providing support during judicial proceedings and other procedures;
- e. any other services arising from lease or sub-lease contracts;
- f. drafting lease contracts and riders, checking lease contracts drafted by third parties and drafting merger and takeover contracts;
- g. providing advice on lease price and newbuild developments for lease contract extensions;
- h. drafting regular progress reports;
- i. filing and case file tracking;
- j. attending meetings of shopkeepers’ and businessmen’s associations, to the extent considered necessary by RPM;
- k. regularly reporting to the principal on developments in the retail property market;
- l. due diligence; examining the Principal’s real property portfolio on the basis of which an opinion is provided;
– the Principal: any natural person or legal entity operating one or more retail outlets, whether directly or indirectly via one or more operating companies or franchisee(s) and any other party which RPM accepts as opposite party to a Professional Services Contract. In the present T&C, the term ‘Principal’ (singular), and verbs relating to ‘Principal’ (singular) will also include the plural if applicable;
– Professional Services Contract: an agreement under the terms of which RPM, alone or in conjunction with other suppliers, undertakes to provide one or more Principals with one or more Services in return for a management fee, brokerage or hourly rate, and to which the statutory provisions for Professional Services Contracts are applicable, unless this is explicitly derogated from in the following and/or in an individual Professional Services Contract.
– RPM: Retail Property Management (RPM) B.V.; the supplier.
1.2 The T&C are applicable to all offers, quotations, orders, the supply of Services and invoices to or from RPM, to all other Professional Services Contracts between RPM and the Principal and to any request by the Principal to supply Services, irrespective of whether a Professional Services Contract has been concluded between RPM and the Principal.
1.3 The parties hereby rule out the applicability of any general terms and conditions or other terms invoked by the Principal. The Principal can only invoke supple¬mentary or alternative clauses if and to the extent that RPM has accepted these explicitly and in writing. Such supplementary or alternative clauses will not prejudice the applicability of the remaining provisions of the T&C and will be applicable only for the agreement for which they are agreed explicitly and in writing.
1.4 By accepting the present T&C, the Principal also accepts the applicability of the T&C for any new Professional Services Contracts and any such follow-on or supplementary contracts between RPM and the Principal.
2.1 A Professional Services Contract will only be concluded if and when RPM has confirmed the details of that contract to the Principal explicitly and in writing, unless RPM commences the execution of the Services to be provided under that contract, if that is earlier.
2.2 The Principal warrants that it is duly authorised to conclude the Professional Services Contract for the retail outlet(s) specified in that contract.
2.3 RPM will execute the Professional Services Contract on the basis of impartiality.
2.4 The Principal will refrain from any activity which could hinder or obstruct RPM in its execution of the Professional Services Contract.
2.5 The Principal will provide RPM with all the information and documents necessary for the proper and prompt execution of the Professional Services Contract.
MORE THAN ONE PRINCIPAL
3. If RPM concludes a Professional Services Contract with two or more principals, each Principal will be jointly and severally liable vis-à-vis RPM for the proper and prompt compliance by those principals of the obligations pursuant to that contract.
THE RESTRICTION OF RPM’s LIABILITY
4.1 The execution and use of the Services provided by RPM depends on many factors beyond RPM’s control. Although RPM undertakes to execute the Professional Services Contract to the best of its insights and ability and in conformity with the required degree of professional skill, the Professional Services Contract is an undertaking for RPM to invest its best efforts (inspanningsverbintenis), so that it can give no guarantees for the Services it provides or the results thereof.
4.2 RPM is only liable vis-à-vis the Principal for damage resulting from a grave default in the execution of the Professional Services Contract to the extent that such a default could have been avoided if the required degree of due care, expertise and the professional skill which could be expected in the given contractual relationship had been exercised or provided.
4.3 Without prejudice to the provisions of the preceding paragraphs, RPM is in no event liable for any loss of profits, consequential risk and/or indirect damage suffered by the Principal. Neither is RPM liable for damage which can be attributed to any act or omission committed by the Principal, by any other supplier(s) called in by RPM, or by one or more third parties called in by the Principal or by such other suppliers.
4.4 Without prejudice to the provisions of the preceding paragraphs, RPM’s liability is at all times restricted to the sum covered and paid out by its professional liability insurance in the relevant case. To cover its professional liability, RPM will take out the insurance customary in the industry. RPM accepts no liability in the event that the professional liability insurer does not pay out.
4.5 The restriction of liability described in this article is also applicable if RPM is liable for the defective functioning of the equipment, hardware, software or other property, none excepted, used for executing the contract. The restriction of liability is also applicable if an email message is not transmitted and/or received properly, in full or within the required period. The Principal hereby grants RPM the right to communicate with the Principal and third parties by email, despite the fact that the confidentiality of information despatched by email cannot be completely guaranteed.
4.6 If RPM becomes liable vis-à-vis a third party as a result of or in connection with the execution of a Professional Services Contract with the Principal on the grounds of any act or omission by RPM, the Principal will indemnify RPM in full in connection with that liability and any additional costs, if and to the extent that the sums paid out under the terms of the professional liability insurance taken out by RPM are insufficient to compensate the damage suffered by a third party, including if no payment is made.
4.7 The Principal’s entitlement to claim the compensation of damage from RPM will at any rate elapse 12 months after the event which caused the damage, directly or indirectly and for which RPM is being held liable, unless any rights the Principal may have vis-à-vis RPM have already elapsed before that date pursuant to statutory provisions.
5. RPM may call in third parties to execute the Professional Services Contract. RPM will decide whether to call in third parties in consultation with the Principal wherever possible and at any rate with due observance of the necessary degree of due care. RPM is not liable for any defaults committed by these third parties or for the consequences thereof. The Principal hereby authorises RPM to unconditionally accept any restriction of liability invoked by third parties on its behalf. Such third parties can furthermore invoke the present T&C.
A. MANAGEMENT FEE
6. RPM will charge the Principal a management fee for the Services referred to under f. to l. inclusive of clause 1.1. Unless the parties have agreed otherwise, explicitly and in writing, the management fee consists of a sum to be agreed by the parties per location on an annual basis, plus a sum for each € 1,000 of net annual lease.
7.1 The Principal is required to pay RPM brokerage at a rate to be agreed by the parties for the Services referred to under a. to e. inclusive of clause 1.1.
7.2 The following is applicable for the brokerage payable for the conclusion of an agreement (including arranging for a lease cut or lease increase out of court) between the Principal and/or its franchisee(s) and one or more third parties:
- a. RPM is entitled to brokerage if and when an agreement is concluded in the course of a Professional Services Contract to which the Principal and/or its franchisee(s) is or are party, even if this derogates from the Professional Services Contract originally concluded with RPM.
- b. RPM is entitled to brokerage if an agreement between the Principal and/or its franchisee(s) and one or more third parties is concluded after the termination of the Professional Services Contract, but if that agreement was concluded in whole or in part as a result of the Services provided by RPM in the course of the Professional Services Contract. An agreement between the Principal and/or its franchisee(s) and one or more third parties will at any rate be deemed to be connected with the Services provided by RPM if it is concluded within six months of the termination of the Professional Services Contract.
- c. If an agreement between the Principal and/or its franchisee(s) and one or more third parties is concluded under one or more suspensory conditions, the brokerage will not become payable and outstanding until these conditions, which must be agreed explicitly and in writing, have been complied with, unless the Principal cannot reasonably invoke the compliance with those conditions vis-à-vis RPM. If an agreement between the Principal and/or its franchisee(s) and one or more third parties is concluded under one or more resolutory conditions, the brokerage will become outstanding upon the conclusion of the agreement. If one or more resolutory conditions are fulfilled, the brokerage will be restituted to the Principal, unless the latter cannot reasonably invoke the compliance with that or those conditions vis-à-vis RPM.
- d. RPM is entitled to brokerage if the Principal itself fulfils the Professional Services Contract or does so with the aid of a third party in the course of the Professional Services Contract, or causes this to be done.
- e. RPM is entitled to brokerage if it has already provided Services in connection with the (desired) Professional Services Contract and if the Principal cannot reason¬ably refuse to conclude or continue the agreement to which the Professional Services Contract refers vis-à-vis RPM. In that event, the brokerage is also payable if the Principal decides not to conclude the Professional Services Contract or to terminate it, invoking clause 2.1.
C. OTHER COSTS
8. The Principal is also required to compensate RPM for expenses, disbursements, advertising and other costs which RPM incurs to execute the Professional Services Contract. RPM will consult the Principal on this subject before incurring such costs.
9. RPM is authorised to increase the management fee and the brokerage unilaterally. RPM will notify the Principal of such a price rise in writing at least three months before it becomes effective, in which case the Principal will be authorised to immediately terminate the Professional Services Contract, without prejudice to its obligation to pay any sums already outstanding under the terms of the Professional Services Contract and/or the present T&C.
10.1 The Principal is required to settle any invoice issued by RPM in full within 14 days of the invoice date, without demanding any discount, deferral or the setting off of debts. If the Principal fails to pay RPM within the above 14-day period, it will forfeit an immediately payable penalty of 2% of the outstanding sum per calendar month, without prejudice to RPM’s right to demand full compensation of damage. A portion of a calendar month will be deemed to be a full month.
10.2 In the event of overdue payment whereby RPM is compelled to proceed with the collection of the outstanding sum, the extra-judicial costs, including any collection costs, will be completely for the Principal’s account; these costs will be computed at the current rate recommended by the Dutch Bar Association (Nederlandse Orde van Advocaten).
CONVERSION AND INTERPRETATION
11.1 The fact that any of the provisions of the present T&C are quashed or declared null and void or non-binding will not prejudice the validity of the remaining provisions. If one or more provisions of the present T&C are quashed or appear to be null and void or non-binding, RPM and the Principal will agree on alternative provisions which are valid and which approximate the nature and purport of the provisions which have been quashed or which appeared to be null and void or non-binding, as closely as possible.
11.2 The headings and chapters in the present T&C are intended only to promote read¬ability and cannot prejudice the nature or interpretation of the provisions of the T&C.
11.3 In the event of any conflict between a translation and the Dutch original of the present T&C, the Dutch original will prevail.
APPLICABLE LAW AND JURISDICTION
12.1 All the relations and any agreements between RPM and the Principal, including any Professional Services Contracts, are subject exclusively to the laws of The Netherlands.
12.2 Any disputes will be submitted exclusively to the court with jurisdiction in The Hague, without prejudice to RPM’s right to submit a dispute to a court which would have had jurisdiction in the absence of the present clause.
CHAMBER OF COMMERCE FILE
13. The present T&C were filed at the offices of the Clerk of the District Court of The Hague on 16 August 2011 under number 60/2011.