AS Real Estate Logistics and Industrial Advisory B.V.

Article 1. Scope and applicability

1.1        AS Real Estate Logistics and Industrial Advisory B.V. is a company incorporated under Dutch law with its registered office at (1017 GE), Amsterdam at Kerkstraat 125-2, the Netherlands, registered with the Dutch Chamber of Commerce under number 81613504 (‘AS Real Estate’).

1.2        These terms and conditions apply to the legal relationship between AS Real Estate and you, the client who gives an assignment to AS Real Estate (‘Client’). These terms and conditions will continue to apply after termination of the legal relationship. Any reference to terms and conditions of the Client is hereby explicitly rejected by AS Real Estate.

1.3        A reference to ‘we’, ‘us’, ‘our’ and ‘company’ is a reference to AS Real Estate. The references to ‘you’ and ‘your’ refer collectively to you being the Client and each of your employees, agents, subcontractors, related legal entities who give(s) an assignment to AS Real Estate.

1.4        AS Real Estate may at any time modify any of these terms and conditions or policies. Unless we notify you in writing or otherwise, the modification is effective upon being posted on the website of AS Real Estate and/or when communicated to you.

1.5        These terms and conditions are applicable to each assignment given to AS Real Estate, including any subsequent assignment or amendment or additional assignment.

1.6        Under these terms and conditions, we limit our liability to you and you indemnify us against certain losses we may suffer. These terms and conditions include all modifications up to and including today’s date.

Article 2. Definitions and interpretations

2.1        The following words contained in these terms and conditions shall, unless the context otherwise requires or explicitly provides otherwise, have the following meanings:

Article 3. AS Real Estate’s services

3.1        AS Real Estate offers advisory services in connection with buying and selling industrial real estate (business to business), as well as consultancy services that are directly or indirectly related to industrial real estate, all in the broadest sense.

Article 4. The assignment

4.1        The assignment commences as soon as AS Real Estate has provided the Assignment Confirmation to the Client in writing or as soon as AS Real Estate has started executing the assignment at the request of and/or in consultation with the Client, if this occurs earlier. 

4.2        Changes to the assignment are only possible with a written confirmation of AS Real Estate.

4.3        Assignments are exclusively accepted by AS Real Estate. This applies even if the express or implied intention of the Client is that the assignment is performed by a certain person. The application of Articles 7:404, 7:407 and 7:409 Dutch Civil Code (“Burgerlijk Wetboek”) is hereby expressly excluded.

4.4        Unless the Client has agreed that the assignment will be performed by a certain person, AS Real Estate is free to determine which of its employees or contractors shall be engaged in the performance of the assignment.

4.5        Unless agreed otherwise, the assignment is granted to AS Real Estate on an exclusive basis and the Client is not permitted to award an assignment with the same scope of services to third parties during the term of the assignment.

Article 5. Information and confidentiality

5.1        The Client will make available (on time and in the desired form) all information and documents, which AS Real Estate considers necessary in order to properly carry out the assignment.

5.2        The Client guarantees the accuracy, completeness and reliability of the information and documents made available to AS Real Estate, also if these have come from third parties.

5.3        The Client must ensure that AS Real Estate is informed immediately about facts and circumstances which may be important in order to properly carry out the assignment.

5.4        The Client shall indemnify AS Real Estate from any third-party claims for damages caused as a result of the Client providing AS Real Estate with incorrect or incomplete information, unless the Client proves that the damage is not caused by imputable actions or omissions on its part, or the damage was caused by wilful intent or gross negligence of AS Real Estate.

5.5        Unless it has a legal or professional obligation to disclose information, AS Real Estate is obliged to observe confidentiality towards third parties. This does not apply to information which the Client has indicated can be disclosed to third parties.

Article 6. Term and termination of the assignment

6.1        The assignment is entered into for an indefinite or definite period.

6.2        The assignment for an indefinite period shall come to an end by serving a notice of termination. The Client and AS Real Estate can each terminate the assignment and serve a notice of termination with a notice period of three (3) months. The notice of termination must be served in writing.

6.3        The assignment for a fixed term shall come to an end on the expiry of the fixed term or due to the completion of the assignment by AS Real Estate, if this occurs earlier.

6.4        Without prejudice to the preceding, the Client and AS Real Estate shall each be entitled to terminate the assignment with immediate effect by a written notice of termination in the event of the other party’s serious imputable failure to fulfil its obligations under the assignment, as well as in the event of administrative receivership or bankruptcy of the other party. In the event of such termination, AS Real Estate will be entitled to receive a payment of the fee and additional costs and expenses in connection with the work carried out up to that point in time, whereby the provisional results of the work carried out up to that point in time will be made available to the Client.

6.5        At the end of the assignment, the Client and AS Real Estate shall immediately return to each other all documents, goods and items which are in their possession and are owned by the other party.

Article 7. Obligations of the Client

7.1        The Client indemnifies AS Real Estate and its auxiliary persons against claims by third parties purporting to have sustained damages by or in connection with work performed by AS Real Estate on behalf of the Client and against the costs incurred by AS Real Estate in connection with putting forward a defence against such claims.

7.2        Payment of invoices of AS Real Estate must take place, without suspension or set off, within 15 days of the invoice date unless another payment period is agreed. In the event of failure to pay within this period, the client is in default and the client is liable for payment of statutory interest as referred to in Article 6:119a Dutch Civil Code (“Burgerlijk Wetboek”), and for all costs incurred by AS Real Estate in connection with the collection costs.

7.3        All (extra) judicial costs in connection with the collection of outstanding invoices – with a minimum of 15% over the amount to be collected – are for the account of the Client. The judicial costs are not limited to the settling of the costs of the proceedings, but will be wholly borne by the Client if it is (mainly) unsuccessful in such action.

Article 8. Engagement of third parties

8.1        AS Real Estate is entitled to engage third parties for the performance of the assignment. The choice of third parties engaged by AS Real Estate, where possible and within reason, will take place on consultation with the Client and subject to the exercise of due care. AS Real Estate will take the necessary care when engaging third parties, however is not liable for shortcomings of these third parties, except in the event of wilful intent or gross negligence of AS Real Estate.

8.2        If these third parties limit their liability in connection with the performance of an assignment of the Client, AS Real Estate shall if necessary thereby assume and confirm that all assignments it accepts from the Client include the authority to accept such a limitation of liability on behalf of the Client.

Article 9. Liability of AS Real Estate

9.1        AS Real Estate will not be liable for indirect and or consequential damages including but not limited to economic loss, loss of production, loss of rent, loss of revenue or profit and depreciation of goods sustained by you, your servants, agents, employees, insurers and third parties for whom you are liable pursuant to any legal relationship.

9.2        If AS Real Estate is nevertheless liable for any direct damage, loss or claim, such liability shall be limited to an amount equal to the amount of the fees the Client has paid for the Services.

9.3        The limitation of liability set out above will only be inapplicable if the damage results from the wilful intent or gross negligence of the management of AS Real Estate.

9.4        Every claim against AS Real Estate shall become time-barred after twelve (12) months, unless AS Real Estate has agreed upon a time-extension in writing. The term shall commence on the day following the day on which the claim has become due and payable, or the day following the day on which you had knowledge of the claim/loss.

9.5        AS Real Estate shall not be liable for any loss which is partly caused by incorrect or incomplete information provided by the Client, or by inaccurate information obtained from public sources.

Article 10. Fees and costs

10.1        In the Assignment Confirmation, AS Real Estate shall confirm the fee and additional costs and expenses it will charge for providing its services. Unless agreed otherwise, the fees and additional costs do not include taxes.

10.2        If the Client requests AS Real Estate to carry out any work in addition to that agreed in the Assignment Confirmation, such request shall be confirmed in writing and any additional fees, if applicable, set out therewith.

10.3        AS Real Estate is entitled to amend the hourly rate, expense allowances and other fees it charges. If the amendment involves an increase of more than 10%, or if there is an increase within three months of the conclusion of the assignment between AS Real Estate on one hand and the Client on the other hand, the Client has the right to terminate the agreement. The right of termination shall expire on the 15th day after the date the first invoice was sent to the Client after the increase of the basic hourly rate and/or the aforementioned expense allowance or other fees.

10.4        AS Real Estate shall remain entitled to the agreed fee after the assignment with the Client has ended in the event that the assignment was not concluded during the term of the assignment leading to no or partial payment of the fee and the Client concluded the assignment thereafter, by itself or with a third party, based on the work wholly or partially performed by AS Real Estate under the assignment. This obligation shall expire on the twelfth (12th) month anniversary of the assignment’s end date.

Article 11. Force Majeure Event

11.1        AS Real Estate shall not be obliged to provide Services in case of a Force Majeure Event. AS Real Estate shall not be liable for any failure, partial failure or delay in performing the Services to the extent that the same is caused by a Force Majeure Event.

Article 12. Third party protection

12.1        Any of AS Real Estate’s employees, affiliated companies, subcontractors, agents, representatives or others who have received an order from or who have been appointed or engaged by AS Real Estate, shall enjoy the same protection as AS Real Estate and shall be entitled to invoke these terms and conditions against you. This article serves as irrevocable third party stipulation (“onherroepelijk derdenbeding om niet”) as referred to in Article 6:253(4) of the Dutch Civil Code.

Article 13. Intellectual property and confidential information

13.1        The Client will not acquire any intellectual property rights relating to the work carried out by AS Real Estate or the results of the work carried out by AS Real Estate.

13.2        Unless provided otherwise by us in writing, you must keep confidential and not disclose, publish or commercially exploit any of our information, including - but not limited to - reports, recommendations, cash flow models, tools, systems and any other intellectual property of AS Real Estate in the broadest sense, excluding information which is public knowledge (other than as a result of breach of confidentiality by you), is in your prior possession or that is otherwise acquired or developed by you independently of us. Upon our written request, you must, unless prohibited by relevant local laws, return or destroy all copies of confidential information in your custody or control.

Article 14. Miscellaneous

14.1        In the event of discrepancy between these terms and conditions and the assignment to which these terms and conditions have been declared applicable, the provisions in the Assignment Confirmation will prevail.

14.2        These terms and conditions and the Assignment Confirmation, including any subsequent assignment or amendment or supplemental assignment, form the entire agreement between AS Real Estate and the Client. Any prior agreements, arrangements, understandings or statements are hereby revoked.

14.3        Should any (part of a) provision of these terms and conditions be or become partially void or nonbinding, AS Real Estate and you will be bound by the remaining (part(s) of the) provisions. AS Real Estate and you will replace the void and nonbinding parts with parts which will be valid and binding and the legal consequences thereof must, in view of the contents and scope of these terms and conditions, correspond as much as possible with those of the void and nonbinding part thereof.

14.4        You shall not assign, transfer or encumber your rights or obligations under these terms and conditions or the legal relationship with AS Real Estate without the prior written consent of AS Real Estate. AS Real Estate may at all times assign, transfer or encumber any rights or obligations under these terms and conditions or the legal relationship with you.

Article 15. Jurisdiction and applicable law

15.1        These terms and conditions and the legal relationship between AS Real Estate and you shall exclusively be governed by the laws of the Netherlands.

15.2        Any and all claims and disputes against AS Real Estate that cannot be resolved out of court – whether contractual or non-contractual – shall be exclusively submitted to the competent court in the district of Amsterdam, the Netherlands. AS Real Estate may at its sole discretion submit claims against a Client to the competent court in a place where the Client has a registered office.

Amsterdam, October 2021