NBMS – General terms and conditions for intermediation in the purchase/sale of vessels

1 Article 1 – Definitions

1.1. Agreement for Intermediary Services: the agreement for the provision of services with the aim of concluding one or more intended purchase/sale agreement(s) between the principal and a third party.

1.2. Broker: a broker associated with the NBMS or the company of a broker associated with the NBMS. ‘Associate’ members are considered to be associated with the NBMS.

1.3. Principal: natural or legal person who concludes an assignment agreement with the broker.

1.4. Brokerage fee: the fee payable by the principal for the mediation.

1.5. Costs: the fee which the principal owes in addition to the brokerage fee in respect of extra work carried out by the broker and/or the costs incurred for the execution of the assignment.

2. Article 2 – Applicability of general terms and conditions

2.1. These general terms and conditions form part of the agreement of assignment in which they are declared applicable.

2.2. If the general terms and conditions deviate from the agreement, the provision as included in the agreement shall prevail.

2.3. If a provision of the agreement or the terms and conditions is found to be invalid, this shall not affect the validity of the entire agreement.

2.4. The principal’s general terms and conditions do not apply and are expressly rejected.

2.5. Amendments to the agreement or the general terms and conditions are only binding if they have been agreed in writing.

3. Article 3 – The brokerage assignment

3.1. The brokerage assignment is an assignment in which the broker commits himself towards the principal to work as an intermediary in the realization of a sale/purchase agreement between the principal and a third party, against payment of a brokerage fee.

3.2. All offers of the broker are without obligation unless expressly stated otherwise.

3.3. The brokerage agreement is concluded when the parties agree on the brokerage fee, the duration of the agreement and the way in which the agreement can be terminated, the asking price and the further conditions under which the brokerage is carried out.

3.4. The broker shall ensure that the assignment is recorded in writing.

3.5. The principal gives the broker the exclusive right to carry out the assignment, i.e. the principal will not sell the object himself or have it sold by someone else during the term of the agreement.

3.6. The broker is only entitled to conclude an agreement on behalf of the principal with a written mandate to that effect.

3.7. The broker has fulfilled his assignment at the moment that the intended agreement between the parties concerned has been concluded as a result of the services provided by the broker. Nevertheless, the broker will still assist the principal in the further processing.

4. Article 4 – Obligations of the broker

4.1. Unless otherwise agreed, the brokerage agreement includes the following services:
a. discussing and advising on the possibilities of reaching the intended agreement;
b. assessing the value of the object in question and determining the asking price in mutual consultation;
c. paying attention to legal, fiscal, technical and other important aspects;
d. with regard to vessels registered in the Netherlands, to investigate the rights vested in the object;
e. undertaking activities to bring the object to the attention of potential buyers;
f. conducting negotiations;
g. actively promoting the conclusion of an agreement between the principal and a third party and drawing up the sale/purchase agreement;
h. supervising the usual settlement.

4.2. At the moment that agreement has been reached between the principal and a third party with regard to the intended agreement on the price and the conditions under which delivery will take place, the broker – if this is not yet known to the parties – will publish the name and address details of both parties in writing.

4.3. The broker shall not make the intended agreement between the principal and a third party dependent on an expert report, expertise and/or valuation report drawn up by the broker himself.

4.4. In the case of brokerage assignments relating to one object, the broker will charge the brokerage fee once only to one party, unless the parties have agreed otherwise in writing.

5. Article 5 – Obligations of the principal

5.1. The principal is obliged to provide the broker with all information relevant to the sale of the object, including a general description, the condition of the vessel, its equipment, its bookings and the presence of any mortgages and garnishment orders. With regard to this information (or the withholding of that information), the principal indemnifies the broker against claims by third parties.

5.2. The principal guarantees that he is authorised to sell the object and shall indemnify the broker in this respect against claims from third parties.

6. Article 6 – Duration of the assignment

The brokerage assignment is entered into for an indefinite period of time, unless otherwise agreed.

7. Article 7 – End of the assignment

7.1. The assignment ends by:
a. the conclusion of the intended agreement;
b. the expiry of the agreed time in the case of an agreement entered into for a definite period of time;
c. revocation of the assignment by the principal;
d. restitution of the assignment by the broker;
e. dissolution by one of the parties.

7.2. The principal may withdraw the agreement at any time after a period of nine months with due observance of a notice period of three months.

7.3. The broker may return the assignment on the basis of important reasons such as, among other things, a serious disruption of the relationship between the broker and the principal or the state in which the object has come to be.

7.4. The assignment can be dissolved when on the side of the other party there is a shortcoming in the observance of the obligations.

7.5. The declaration of revocation, refund and/or dissolution must be made by registered letter or by mutually confirmed email. In the event of a withdrawal or refund, the broker is entitled to a percentage of the brokerage fee to be reasonably determined, with a maximum of 50% and reimbursement of costs already incurred.

8. Article 8 – Brokerage fee

8.1. The principal shall owe the brokerage fee if the intended agreement is concluded during the term of the assignment. This also applies in the case:
• the contract is not performed as a result of breach of contract by one of the parties;
• the agreement is not the result of the services provided by the broker unless the parties have explicitly excluded the exclusivity of the broker.

8.2. If the final conclusion of the agreement is subject to a suspensive or resolutive condition – provided that this condition has been agreed through the broker – the right to a brokerage fee is also subject to this.

8.3. The principal also owes a brokerage fee if:
• the intended agreement is concluded within six months after the end of the brokerage agreement, unless the principal can sufficiently demonstrate that the conclusion of that agreement has no connection whatsoever with the broker’s services.
• the principal has given the object permanently in use to a third party who was initially specified and/or approached and/or informed by the broker.

8.4 If in the intended sale/purchase agreement the agreed consideration consists wholly or partly of the exchange of a vessel, the broker fee shall also be determined on the basis of the value of that vessel. In the event of a pure mutual exchange without additional payment, the brokerage fee shall be determined on the basis of the vessel with the highest value.

9. Article 9 – Costs

Unless otherwise agreed, the principal shall reimburse the costs incurred by the broker for the assignment. If no agreements have been made about this beforehand, the broker shall in any case be entitled to reimbursement of the costs reasonably incurred. The obligation to reimburse costs shall also apply in the event of withdrawal or return of the assignment.

10. Article 10 – Liability

The liability of the broker is limited to the amount actually paid out under the professional liability insurance in the case in question. If, for any reason whatsoever, the broker would also have a payment obligation, this would be limited to the brokerage fee charged in that case, with a maximum of € 10,000.

11. Article 11 – Complaints

11.1. A complaint about a shortcoming in the execution of the agreement must be submitted to the broker in writing, properly described and explained, as soon as possible but in any case within 14 days after the principal has discovered the shortcoming or should reasonably have discovered it.

11.2. After the expiry of this period, the principal shall be deemed to have approved the services provided or the invoice, respectively, unless the principal cannot reasonably be blamed for exceeding this period.

12. Article 12 – Cash flow purchase price

12.1. The relevant purchase price under the (intended) agreement concluded between the principal and a third party will be received by the broker on behalf of the principal.
The broker shall keep the purchase price in a third party account for the benefit of the principal. In the absence of an own third party account, the broker will make use of the services and a third party account of a notary, or make a written agreement with the parties about the route to be followed and deadlines for the cash flows.

12.2. The broker reserves the right to set off the fee he is entitled to on account of the brokerage assignment (brokerage and costs) against the purchase price mentioned in paragraph 1 of this article.

12.3. If no use is made of the services of a notary, the broker will, after settlement of the sale/purchase, forward the purchase price after deduction of the brokerage fee and costs to the principal as soon as possible.

13. Article 13 – Payment of brokerage fee

13.1. Payment of the brokerage fee and the costs must be made into a bank account designated by the broker or at the broker’s place of business, unless the parties have agreed otherwise in writing.

13.2. If the principal fails to pay on time, he shall be deemed to be in default without any notice of default being required and the broker shall be entitled to proceed to collection and to charge the extrajudicial costs.

14. Article 14 – Right of retention

The broker is entitled to retain the object of the brokerage agreement until his principal has paid the total amount owed – including the costs arising from this right of retention. In the event of partial or improper performance, suspension of the delivery of the object shall only be permitted to the extent justified by the shortcoming.

15. Article 15 – Confidentiality

15.1. The broker will treat the announcements made by the principal within the framework of the brokerage assignment as confidential.

15.2. The principal is obliged to observe confidentiality towards third parties of information of a confidential nature that he receives from the broker in connection with the brokerage assignment.

16. Article 16 – Applicable law

16.1. All disputes relating to this agreement shall be governed by Dutch law.

16.2. Before submitting a dispute to court, the parties shall first consult with each other in order to examine whether the dispute can also be settled in another way, for example through arbitration, mediation or binding advice.