Troostwijk Roux Expertises
1. General
1.1 These General Terms and Conditions apply to all proposals, offers and agreements, as well as to the conclusion of agreements and their execution.
The General Terms and Conditions relate to Troostwijk-Roux Expertises bv (‘Troostwijk’) as well as its subsidiary companies, which declare these General Terms and Conditions applicable.
1.2 The applicability of any of the Client’s General Terms and Conditions is excluded, unless and in as far Troostwijk-Roux Expertises bv agrees explicitly and in writing to such terms and conditions in the agreement. Deviations from these General Terms and Conditions must also be approved by Troostwijk-Roux Expertises bv explicitly and in writing.
1.3 In these General Terms and Conditions ‘client’ means: any natural or legal person, legal person in the process of formation or association of persons concluding or wishing to conclude an agreement with Troostwijk and in addition to these natural or legal persons, persons in the process of formation or associations of persons, those authorized to represent them, such as authorized agents, attorneys-in-fact, mandatories, successors in title or heirs.
1.4 In these General Terms and Conditions ‘agreement’ means: an agreement or instruction relating to specialist services provided by Troostwijk in the area of valuations or loss assessment. Unless the contents, tenor or object of the agreement stipulate otherwise, providing such a specialist service as a rule relates to giving a value assessment or advice. Troostwijk will draw up a report or deed with respect to this value assessment or advice.
1.5 In these General Terms and Conditions ‘report’ means: the written representation of the result of the execution of the agreement as referred to in Article 1.4.
1.6 In these General Terms and Conditions ‘deed’ means: a document drawn up in accordance with the prescribed standards and certified by an authorized person serving to lay down a designation or an assessor and loss assessment and if necessary to serve as proof as referred to in Article 1.4.
1.7 In these General Terms and Conditions ‘revaluation’ means: a valuation conducted around the expiry date of a valuation report drawn up by Troostwijk previously and for the same purpose.
1.8 In these General Terms and Conditions ‘subscription agreement’ means: a valuation agreement which, during the term of the agreement, at a fee determined in advance, gives the right to annual adjustment of the valuation as well as a revaluation at around the end of the term of the agreement.
2. Proposals and offers
2.1 All proposals, offers and information provided by Troostwijk, including budgets, plans, catalogues or other documents, are exclusively intended for the addressee and are without any obligation unless explicitly stated otherwise.
2.2 If the client has accepted the offer without obligation, Troostwijk shall have the right to revoke the offer within ten days of receipt of the acceptance. Acceptance of the offer by the client constitutes an agreement between the parties, unless Troostwijk revokes the offer with due observance of the stipulations in the preceding sentence.
3. Agreement
3.1 The confirmation of engagement contains the essential terms of the agreement and must be signed and returned by the client immediately.
3.2 The client is obliged to inform Troostwijk of facts or circumstances which could affect the execution of the agreement, in as far as it was or should have been aware of them. If it fails to do so, the signatory to the contract will be personally liable for payment of the fee.
3.3 Third parties engaged by Troostwijk will, where possible, be chosen in consultation with the client duly taking appropriate care. Troostwijk is not liable for shortcomings of these third parties, as far as they relate to a different area of expertise.
3.4 A subscription agreement is concluded for the period as set out in this subscription agreement. Except in the case of timely termination in accordance with Article 3.5, the agreement shall be deemed to have recommenced for the same period tacitly and automatically under the same conditions and stipulations as previously agree by the parties. After automatic renewal, Troostwijk reserves the right to renegotiate the conditions and stipulations.
3.5 Termination of a subscription agreement must take place by registered letter before the end of the agreed contract term with a minimum notice period of 3 months. In the event of early termination, the specified fee remains payable.
4. Prices / Fees
4.1 Unless indicated otherwise, Troostwijk’s prices are:
- Exclusive of BTW (Belgian VAT), other levies and taxes;
- in EURO currency;
- Exclusive of any travel and accommodation expenses and advance payments connected to the performance of the agreement;
- Exclusively for the services specified in the agreement. Additional valuations, participation in post-valuation meetings, giving evidence in court or being available to speak to auditors or similar will incur an additional fee at the usual hourly rate.
4.2 In agreements between Troostwijk and the client, an hour-based fee, a permillage agreed between the parties in advance or otherwise may be agreed, even if they are not specified in these General Terms and Conditions. In this respect account can be taken of the contents, tenor and object of the agreement.
4.3 Troostwijk reserves the right to increase the prices as referred to in Article 4.1 in the event of increases in the cost price relating to the execution of the agreement, provided that three months have elapsed since the agreement was concluded.
4.4 For agreements concerning loss assessments based on a percentage or fee scale, the fee scale will be applied separately for material damage and for economic loss, if the same risk is insured under different policies and for types of damage for a community of owners and for private areas and shared areas. The fee scale will always be applied to the full loss assessment, regardless of whether any compensation has been paid to the victims of the damage.
5. Payment
5.1 Invoices are paid by transfer or deposit of the amount payable to a bank account specified by Troostwijk.
5.2 If an invoice is sent by Troostwijk to the client, the payment term is 30 days following the invoice date, unless the parties have explicitly agreed otherwise in writing or if the invoice indicates a different payment term.
5.3 All payments made by the client shall serve primarily as payment for any interest, collection cost incurred by Troostwijk and damages and subsequently as payment for those invoices which have been outstanding for the longest time.
5.4 The client shall be in default by operation of law by the expiry of the payment term referred to in Article 5.2. No further notice of default is therefore required.
5.5 After the expiry of the payment deadline Troostwijk is empowered, without further notice of default, to proceed to recover from the client the amount owed, plus penalty interest of 12% per annum on the full amount of the invoice as well as all legal costs actually incurred and all extrajudicial collection costs. The extrajudicial collection costs will amount to at least 15% of the amount owed by the client (including the interest referred to in this clause), with a minimum amount of EUR 100.00.
6. Complaints
6.1 Any complaints about the report or other services provided will only be managed by Troostwijk if they have reached Troostwijk within 30 days of Troostwijk sending the report or providing the services by certified mail. In view of the nature of the activities, complaints that merely concern the result of the valuation are not treated as complaints, unless a serious mistake is alleged.
When an assignment is given, the client accepts that the assignment is subject to a Best-Efforts obligation, and not an obligation to produce a particular result. Under no circumstances may the charging of a percentage-based fee be regarded as an obligation to produce a particular result; it may only be regarded as compensation linked to the scale of the work performed.
6.2 Any complaints about the invoice will only be managed by Troostwijk if they have reached Troostwijk directly within 8 days by certified mail.
6.3 The date stated in the report, invoice or otherwise determines the commencement of the periods.
6.4 Complaints must be submitted in writing, stating in detail their nature and ground. Complaints submitted other than in writing will not be managed.
6.5 After the expiry of these periods, the client shall be deemed to have approved the report or other service provided and the invoice. From that timer, Troostwijk will no longer accept complaints.
6.6 The client’s payment obligation will only be suspended if and in as far as Troostwijk considers the complaints justified, until the time when the complaint has been dealt with.
6.7 If the complaints are found justified, Troostwijk will subsequently fulfil the agreement correctly, in as far as reasonably possible.
6.8 The invoice, report or other service provided may only be returned by virtue of complaints with Troostwijk’s prior written permission. Troostwijk will determine the conditions on which they are returned.
6.9 Returning items without Troostwijk’s prior written permission does not result in the unilateral suspension of the agreement by the client or in complete or partial dissolution.
7. Force majeure
7.1 Troostwijk will exercise due care in the execution of the agreement. Troostwijk will act in complete good faith and to the best of its knowledge and ability.
7.2 Shortcomings may not be attributed to Troostwijk if they are not its fault, nor if is not accountable by law, juristic act or according to generally accepted standards.
7.3 Troostwijk reserves the right to execute the agreement if execution has not yet become permanently impossible. In such an event the client is therefore not entitled to dissolve the agreement.
7.4 If in Troostwijk’s opinion an unattributable failure is of a permanent nature, it may make the client a proposal concerning the dissolution of the agreement existing between the parties, as well as concerning its settlement.
7.5 If work has been conducted before an unattributable failure as set out in Article 7.2 became apparent, Troostwijk reserves the right to demand proportional performance from the client.
7.6 The client must inform Troostwijk if it knows or suspects that it will be in a state of force majeure in the near future.
8. Liability
8.1 Except in the event of intention or gross negligence on the part of Troostwijk, it will not be liable and not be bound to pay compensation for damage and/or loss, of whatever nature, including consequential loss, to movable or immovable property, or to persons, in relation to the client or third parties.
8.2 In view of the nature, content and tenor of the instructions given to Troostwijk, its total liability for damage and/or loss suffered by the client by virtue of an attributable failure, unlawful act or otherwise, shall in any event be limited to the fee, commission, valuation fee or any other remuneration agreed by the parties, exclusive of turnover tax and exclusive of costs incurred in connection with the execution of the agreement, on the understanding that in all cases the maximum will be the amount to which Troostwijk is entitled from its professional liability insurer(s).
8.3 Troostwijk is in no way liable for damage and/or loss suffered by the client resulting from the state of repair itself or invisible defects found afterwards.
8.4 Troostwijk is in no way liable for damage and/or loss which the client suffers resulting from incorrect information or data in general, either from the client or from third parties, irrespective of whether this information or these data in general could reasonable be assumed to be correct. Troostwijk shall also never be liable if the client suppresses information which is of importance to the value assessment.
8.5 An action for damages shall lapse one year after both the damage and/or loss and the alleged party liable to pay damages become known.
9. Termination
9.1 If the agreement is terminated by the client before the work relating to the instruction has commenced or been completed, the client shall be obliged to pay the costs connected with the preparation or execution of the instruction, in as far they are not included in Troostwijk’s remuneration plus a portion of Troostwijk’s remuneration, fixed on reasonable grounds. If the agreement is terminated on the day on which the work is scheduled to be performed, the fee will be payable in full, except where the work was to have been performed over multiple days, in which case the lost day’s work will be charged at a minimum of 40% of the agreed fee.
9.2 If a subscription agreement is prematurely terminated, the client is not entitled to a refund of the amount already set aside for Troostwijk for the purpose of the annual update and five-yearly re-valuation.
9.3 If an agreement for a loss assessment is prematurely terminated by the client, the fee will be payable in full at a standard fixed rate, except in cases of termination by a private individual within the terms stipulated by law.
10. Dissolution
10.1 Troostwijk has the right to suspend its obligations arising from the agreement or to dissolve the agreement wholly or partially at any time:
a) if before or during execution, but after concluding the agreement, Troostwijk or one of its employees begins to suspect with reason that the client will not fulfil its obligations under the agreement for the time being or permanently, and/or if the fee invoice is not paid by the specified deadline;
b) if after concluding the agreement the client transfers its business to a third party;
c) if before or during the execution of the agreement the client offers an employee of Troostwijk a bribe or other items of monetary value in order to influence the result of the valuation or loss assessment;
d) if before or during the execution of the agreement the client is declared insolvent, assigns its assets, applies for a moratorium on payment, or if all or part of its assets are attached;
e) if before or during the execution of the agreement the tax authorities exercise their right of seizure;
f) if before or during the execution of the agreement the client dies or, if the client is a legal person or an association of persons, is dissolved;
g) if before or during the execution of the agreement the client is put under administration, guardianship, mentorship or placed under supervision;
h) or if before or during the execution of the agreement the client does not observe any statutory provision or any stipulation included in the General Terms and Conditions.
10.2 Suspension or extrajudicial dissolution resulting from the aforementioned grounds for dissolution will be by means of a written statement from Troostwijk.
10.3 If one or more of the aforementioned circumstances of Article 11 occur and if this results in any amount being owed by the client for services rendered, Troostwijk reserves the right to claim payment of this amount immediately and without any notice of default being required, without prejudicing its right to payment of costs, damages and interest in accordance with Articles 4, 5 and 6.
11. Confidentiality
11.1 All information made available by Troostwijk or by the client
for the agreement or instruction is subject to an obligation of confidentiality for both parties, unless they have agreed otherwise in writing or this appears from the contents, tenor or purpose of the information.
12. Intellectual property
12.1 If a proposal, offer or information is accompanied by budgets, plans, catalogues or other documents, they shall at any time remain the intellectual property of Troostwijk. Without prior written permission they may not in any way be used in publications, circulars or documents intended for third parties. They must be returned to Troostwijk on demand immediately, without prejudicing other statutory measures available to Troostwijk to safeguard its rights.
12.2 If the client has failed attributably in the fulfilment of its obligations arising from the agreement, it will not be entitled to use, reproduce, store in a computerized data file, or publish the document referred to in Article 13.1, in whatever form or in whatever way, including electronically, mechanically, by means of photocopies, digital recording, without Troostwijk’s prior written permission.
12.3 If the client does not fulfil any obligation towards Troostwijk set out in this article, it shall owe an immediately payable penalty of EUR 500,- per day or part of a day or occurrence, without prejudicing Troostwijk’s right to recover the actual damage and/or loss from the client.
12.4 The reports written by Troostwijk remain its property until such time as the fee is paid in full. Use of a report in dealings with third parties (e.g. banks, insurers, etc.) means that the client has accepted the report and the fee is indisputably payable.
13. Applicable law
13.1 All agreements between Troostwijk and the client are governed by Belgian law and unless otherwise agreed, the courts of Antwerp have exclusive authority.
14. Disclaims – Valuations
14.1 The valuation is based on a visual inspection by one or more experts, considering matters including location, type of construction, designated use and state of repair at the time of the valuation.
14.2 In the context of the instruction, a valuation report is not a (technical) inspection report, but only a valuation. Therefore, no in-depth investigation is made into the structural or technical state of the appraised items. Troostwijk assumes, however, that these items function properly.
14.3 Any invisible defects cannot be considered in a visual inspection, and they are not included in the valuation. Troostwijk is therefore not liable for them.
14.4 The valuation is also based on information provided by the client or third parties.
14.5 In the valuation it is assumed that, unless explicitly stated otherwise in this report, approvals or permits prescribed by the government with respect to the appraised item have been or can be obtained without incurring additional cost.
14.6 It is also assumed that no restrictions under public or private law arise from the (aforementioned) laws, measures, regulations or byelaws which affect the value of the appraised item.
14.7 Any premiums, subsidies or government contributions in whatever form or however named to be obtained or refunded are not considered, unless stated otherwise.
14.8 Unless stated otherwise, no specific information is obtained, nor a comprehensive investigation conducted into previous abstracts of title which might show any real rights of third parties other than those stated. Nor will investigation take place into possible other rights of third parties arising from an agreement which might be vested in the items concerned. No extensive planning survey is conducted, and the information provided in the report must therefore be considered as indicative.
14.9 Unless stated otherwise, the valuation does not consider any harmful effects on the environment or public health which could occur by the use of one or more of the appraised items and which could have a negative effect on the value of the properties.
14.10 The valuation assumes that the appraised items form a single entity. If items are valued separately or in a different configuration, the actual value may deviate from the value stated in the report.
14.11 The valuation is intended exclusively for the client and may not without prior written permission be used in any form in publications, circulars or documents intended for third parties.
14.12 Troostwijk is also not liable for damage and/or loss resulting from the use by third parties (or for purposes other than for which they were drawn up) of the report or deed drawn up by Troostwijk.
14.13 With due observance of the above, Troostwijk does not accept any responsibility towards parties other than the client with respect to the contents of the report. Any responsibility or liability for reports other than the original report is explicitly excluded.
14.14 Troostwijk will not put the report at the disposal of third parties, unless this is done at the client’s request, or with the client’s approval following a request from Troostwijk. Making the report available to third parties at the client’s request does not prejudice the fact that Troostwijk does not accept any liability towards third parties.
14.15 In as far as the valuation is connected to a finance application, Troostwijk guarantees that it will not be involved in the underlying purchase or sales transaction.
