General Terms and Conditions Avaxa Debt Advisors B.V.
1. You, you or the client: the party for whom the Engagement is performed.
2. We or us or Avaxa: the legal entity Avaxa Debt Advisors B.V.
3. Engagement: the oral or written agreement in which we undertake to provide services to you.
All relations between Avaxa Debt Advisors B.V. (“Avaxa”) and you are subject to these General Terms and Conditions. The provisions in these General Terms and Conditions are made for the benefit not only of Avaxa, but also of all third parties, like contractors, shareholders, managers, associate parnters and employees, that are involved in any matter whatsoever for the services provided by or on behalf of Avaxa.
Avaxa Debt Advisors B.V. (“Avaxa”) is a limited liability company (‘besloten vennootschap met beperkte aansprakelijkheid’) incorporated under the laws of the Netherlands, having its corporate seat in Amsterdam, the Netherlands, and is registered with the Dutch trade register under number 66402344.
1. All Engagements are given to Avaxa as an organization, also in case you expressly or implicitly or tacitly intend the Engagement to be performed by a specific person. The applicability of articles 7:404, 7:407 paragraph 2 and 7:409 paragraph 1 of the Dutch Civil Code is excluded.
2. The services provided by Avaxa explicitly exclude any legal, regulatory, tax, valuation, pension, accounting or technical advice.
3. Avaxa shall provide its services to the best of its ability and exercise the due care that, in the given circumstances, may reasonably be expected from it with respect to the services provided by or on its behalf. Avaxa does not guarantee that the result envisaged in the Engagement can be reached.
4. Any written or oral information or advice to be provided by Avaxa in connection with its Engagement is explicitly provided on behalf of and is exclusively for the information of you and shall not be made available to third parties or be disclosed publicly without the prior written consent of Avaxa, nor can any third party rely on such advice or be entitled to derive any rights from them.
5. If we have not yet received a separate signed Engagement letter, the Engagement shall be deemed to have been established under these General Terms and Conditions as soon as we have actually started performing the Engagement.
6. Avaxa is authorized, when performing Engagements, to use the services of third parties. We shall take the necessary due care in selecting third parties to be engaged in carrying out an Engagement. Avaxa is not liable for any acts or omissions of third parties. You hereby authorize us to accept any limitations of the liability of third parties on your behalf and we can rely on this third party limitation of liability towards you if such limitation of liability would be more stringent than our own limitation of liability.
1. If an Engagement requires your cooperation, you shall provide us with all information and documents that we require for proper and timely execution of the Engagement and you shall do so on time and in the form and manner that we require.
2. You alone shall bear the responsibility for determining the scope of the Engagement and for taking decisions (partially) based on, or in connection with, our services.
3. Avaxa shall perform the Engagement on the basis of the financial and other information provided to it in respect of the Engagement,. You undertake to ensure that the information you provide is correct, accurate and complete. You hereby agree that if Avaxa receives information from third parties in respect of the Engagement, Avaxa can assume, without any need for further verification, that this information is correct, accurate and complete.
4. Any additional costs and damage or loss caused by a delay or faults in the execution of the Engagement resulting from failure to make the requested information, facilities and/or staff available, or failure to do so on time or in the proper form, shall be for your account and risk.
5. In providing services within the scope of its Engagement, Avaxa does not accept responsibility for the inaccuracy of, or misstatements or omissions in, financial, legal, commercial, tax, technical, accounting or other information from or relating to any other party than Avaxa and for any assumptions of such parties based thereon provided to Avaxa in connection with the Engagement.
6. When concluding an Engagement and during the term of the Engagement, you must inform Avaxa, on your own initiative, or when requested to do so, regarding all facts and circumstances which may be relevant, in any way, for the timely and correct performance of the Engagement, including vis-a-vis third parties.
7. Information provided to Avaxa by you shall be returned to you, at your request, after completion of the Engagement. Avaxa shall keep its own (electronic) working files on the Engagement, containing copies of in its opinion relevant documents, which shall remain its property.
1. Avaxa treats all information obtained from you in connection with an Engagement strictly confidential. Such information shall only be shared with third parties that are not at any time engaged with respect to the specific Engagement after prior written approval of you, such approval not to be unreasonably withheld. The obligation to treat all information confidential does not apply to the extent that (i) a court ruling or decision by a government body would require disclosure of confidential information , (ii) according to Avaxa, sharing such information is necessary to defend its legal position in any legal or regulatory proceedings and/or investigations, any disciplinary, civil, administrative or criminal proceedings or otherwise to comply with its own regulatory obligations, or (iii) at the date of acceptance of an Engagement or thereafter such information is public knowledge or which was already known to Avaxa prior to its Engagement, otherwise than through unlawful disclosure of which Avaxa at the time of disclosure was or could reasonable have been aware that it was unlawful.
2. Except where any national or international legislation or regulations require you to disclose information, or except where Avaxa has given its prior written consent, you shall not disclose, or provide to third parties, any information concerning the Engagement, the content of reports, opinions or any other written or oral statements issued by Avaxa. This provision shall apply mutatis mutandis if the Engagement is terminated early.
3. We shall have the right to mention your name and sketch a broad outline of the services provided to potential and existing clients as an illustration of our experience.
1. All fees of services performed by Avaxa exclude (i) out-of-pocket travel and accommodation expenses, (ii) VAT and any other (future) taxes and other levies and (iii) costs relating to the engagement of third parties. Avaxa shall recharge the costs of any such out-of-pocket expenses, third-party fees, taxes and levies to you.
2. All fees of services performed by Avaxa will be determined in a separate written agreement. All amounts are in euro, unless agreed upon otherwise.
3. If any pricing factors, such as salaries and/or rates, and/or circumstances are subject to change between the inception date and completion date of the Engagement, Avaxa shall have the right to adjust the previously agreed fee accordingly.
4. Unless agreed otherwise, invoices will be sent by the end of each calendar month. All payments will become due and payable within a period of fourteen days from the date of invoice. Upon expiration of this deadline, you will be in default, no notice of default being necessary, and from that moment all judicial and extrajudicial costs incurred by Avaxa relating to obtaining fulfilment will be for the account of you, including any costs of legal assistance, with a minimum of € 250.–. You are also obliged to pay the statutory commercial interest.
5. Complaints about or objections to any amounts charged shall not suspend your obligation to pay.
6. In case the invoice has not been paid within the set time period, Avaxa has the right to suspend all activities for you, after prior notification to you. Avaxa will not be liable for damages which may occur as a result of this suspension of activities.
7. Avaxa may ask you, for an advance payment of fees. Any advance payment of such fees will be set off against the final invoice to be paid by you.
1. Either party has the right to terminate the Engagement in writing, with the observance of a reasonable notice period, which is at least two months.
2. Either party is entitled to terminate the Engagement, either partially or in full, in writing with immediate effect, without notice of default or judicial intervention being required, if the other party has been granted a provisional or final suspension of payment, or has been declared insolvent or bankrupt, or if its business is or shall be wound up or discontinued.
9. Liability and indemnification
1. If, in the context of the performance of an Engagement, an event occurs which leads to liability of Avaxa, then such liability shall be limited to either:
a. the amount paid out under Avaxa’s professional liability insurance policy, increased by the amount of the deductible that is not for the account of the insurers under the policy terms and conditions, in the event that Avaxa has any insurance coverage for such damages; or
b. the amount which is equal to two (2) times the relevant fee received (excluding success fees and excluding costs charged by any third party) with a maximum of EUR 150.000, in the event that Avaxa does not have insurance coverage for such damages.
In no event shall Avaxa be liable for punitive damage, indirect damages (‘indirecte schade’), consequential damages (‘gevolgschade’), loss (‘verlies’), personnel costs (‘personeelskosten’) and/or loss of profits (‘gederfde winst’).
2. You cannot hold Avaxa liable for any third party claims, including a claim for reasonable costs for legal assistance, which will be related in any way to the services rendered to you, unless such claims are the result of wilful misconduct (‘opzet’) or grave recklessness (’bewuste roekeloosheid’) of Avaxa.
3. You shall indemnify us and hold us harmless against any claim by third parties that may arise as a result of any failure on your part to comply or to comply properly with any obligation arising from the Engagement and/or these General Terms and Conditions, unless you demonstrate that the losses do not relate to imputable acts or omissions on your part, or were caused by wilful misconduct (‘opzet’) or grave recklessness (‘bewuste roekeloosheid’) on Avaxa’s part. This indemnification shall apply also in respect of any shareholders, directors of shareholders, managing directors, associate partners or employees of Avaxa or third parties, whom we engage for the performance of the Engagement, who shall accordingly be able to invoke this indemnification directly.
4. Any right to compensation for damage shall lapse twelve months after the occurrence of the event that caused the damage for which Avaxa is held liable.
10. Use of internet
The parties may communicate with each other via electronic means of communication. The parties recognize the risks associated with the use of electronic communication, including but not limited to distortion, delays, interception, manipulation and viruses. The parties hereby declare that they shall not hold each other liable for any damage or loss incurred by either of them as a result of the use of electronic communications. This also applies to the use of electronic communications – irrespective of the form – between Avaxa and third parties, including but not limited to Dutch or tax authorities. The parties shall do or omit all that can reasonably be expected of them to avoid such risks.
11. Language These General Terms and Conditions are available in the Dutch and English language. In case of any discrepancy as to the contents and purport of these General Terms and Conditions, the Dutch text shall prevail.
12. Personal data
By virtue of its services Avaxa is processor of personal data. Avaxa processes personal data in accordance with its Privacy Statement.
13. Applicable law and disputes The legal relationship between Avaxa and you shall be governed by Dutch law. Any dispute between Avaxa and you shall be exclusively submitted to the competent court in Amsterdam, the Netherlands.
These General Terms and Conditions can be consulted at http://avaxa.nl/nl/general-terms-and-conditions