GENERAL TERMS & CONDITIONS AVAXA DEBT ADVISORS B.V.
General Terms and Conditions Avaxa Debt Advisors B.V.
1. Definitions
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., 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.
3. Engagement: the oral or written agreement in which we undertake to provide services to you.
2. Applicability
All relations between us 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 us, but also of all third parties, like contractors, shareholders, managers, associate partners and employees, that are involved in any matter whatsoever for the services provided by or on our behalf.
3. Engagement
1. All Engagements are given to us 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 us explicitly exclude any legal, regulatory, tax, valuation, pension, accounting, technical or ESG (environmental, social and governmental) advice.
3. We shall provide our services to the best of our ability and exercise the due care that, in the given circumstances, may reasonably be expected from us with respect to the services provided by or on our behalf. We do not guarantee that the result envisaged in the Engagement can be reached.
4. Any written or oral information or advice to be provided by us in connection with the Engagement is explicitly provided on behalf of you and is exclusively for the information of you and shall not be made available to third parties or be disclosed publicly without our prior written consent, 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. We are authorized, when performing Engagements, to engage the services of third parties. We shall take the necessary due care in selecting third parties to be engaged in carrying out an Engagement. We are 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.
4. Information
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 we receive information from third parties in respect of the Engagement, we 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, we do 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 us and for any assumptions of such parties based thereon provided to us in connection with the Engagement.
6. When concluding an Engagement and during the term of the Engagement, you must inform us, 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 us by you shall be returned to you, at your request, after completion of the Engagement. We shall keep our own (electronic) working files on the Engagement, containing copies of in its opinion relevant documents, which shall remain its property.
5. Confidentiality/disclosure
1. We treat 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 us, sharing such information is necessary to defend our legal position in any legal or regulatory proceedings and/or investigations, any disciplinary, civil, administrative or criminal proceedings or otherwise to comply with our 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 us prior to its Engagement, otherwise than through unlawful disclosure of which we at the time of disclosure were or could reasonable have been aware that it was unlawful.
2. Except where any national or international legislation or regulations or a court order require you to disclose information, or except where we have given our 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 us. 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.
6. Payment/fee
1. All fees of services performed by us 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. We 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 us 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 taxes, and/or circumstances are subject to change between the inception date and completion date of the Engagement, we shall have the right to adjust the previously agreed fee accordingly.
4. Potential retainers shall be considered as the minimum fee. If the total of the retainers invoiced to you exceeds the agreed fee, you are obligated to pay the retainers within the payment term. You are not entitled to reimbursement of paid retainers.
5. 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. This is a fatal date. 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 us 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.
6. Complaints about or objections to any amounts charged shall not suspend your obligation to pay.
7. In case the invoice has not been paid within the set time period, we have the right to suspend all activities for you, after prior notification to you. We will not be liable for damages which may occur as a result of this suspension of activities.
8. We 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.
7. Termination
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.
8. Liability and indemnification
1. If, in the context of the performance of an Engagement, an event occurs which leads to our liability, then such liability shall be limited to either:
a. the amount paid out under our 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 we have 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 we do not have insurance coverage for such damages.
In no event shall we be liable for punitive damage, indirect damages (‘indirecte schade’) (e.g. company standstill or delay), consequential damages (‘gevolgschade’), loss (‘verlies’), personnel costs (‘personeelskosten’) and/or loss of profits (‘gederfde winst’).
2. You cannot hold us liable for any third party claim, 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 our wilful misconduct (‘opzet’) or grave recklessness (’bewuste roekeloosheid’).
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 us 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 we are held liable.
9. 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.
10. 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.
11. Personal data
By virtue of its services we are processor of personal data. We process personal data in accordance with our Privacy Statement.
12. Applicable law and disputes
The legal relationship between us and you shall be governed by Dutch law. Any dispute between us and you shall be exclusively submitted to the competent court in Amsterdam, the Netherlands.
Privacy Statement
Disclaimer
The below information is applicable to any use of our website http://avaxa.nl/. By using the website, you acknowledge to have read and agreed to these terms and conditions. Dutch law is applicable to these terms and conditions and the District Court of Amsterdam has exclusive jurisdiction.
Our website is for information purposes only. No rights can be derived from the website and we are not in any way liability for damages incurred by using the website or information contained thereon.
Our website contains hyperlinks to third party websites and social media buttons. We are not liable for the content of these websites or services of the social media platforms concerned. We are not responsible for the privacy policy or the use of cookies on those websites or social media platforms either.
Intellectual Property Rights
Unless indicated otherwise, we are the sole owner of the information contained on its website, including author’s rights and other intellectual property rights.
Privacy statement
We respect this website’s visitors’ and our clients’ privacy. We take care that the information supplied by you to us is treated confidentially. The processing of personal data is handled in a way that meets the General Data Protection Regulation (GDPR), the Dutch GDPR Execution Act (GDPREA) and the Dutch Telecommunications Act (TA).
Who is responsible
We are controller in the sense of the GDPR for the processing of personal data in the following circumstances:
• The processing of personal data within the framework of a advisor-client relationship with us or prospects with whom we have established contact or desires to establish contact;
• The processing of personal data of the visitors of our website;
• The processing of personal data of recipients of promotional advertisements, newsletters and commercial e-mails of us;
• The processing of other personal data of people contacting us.
To partners, employees, associate partners, temporary work force, student interns and job applicants we have a different policy.
What personal data do we process?
We process personal data that you have supplied to us, that has been generated during your visit to the web site and reading newsletters and personal data that we have derived from other sources like social media platforms.
Purposes
We use your personal data for the following purposes:
• The execution of your instruction to us;
• The fulfilment of our legal obligations;
• Maintaining contact with you;
• Improving our product and service information and the execution of directed marketing actions;
• Executing and analysing client satisfaction surveys;
• Creating user statistics for our website;
Reasons for processing of personal data
We process the personal data exclusively for the legal reasons mentioned in article 6 section 1 GDPR.
Sharing personal data with third parties
Sometimes it is necessary to share your personal data with third parties. Subject to the circumstances at hand sharing your data can be necessary for the execution of the agreement. Also legal requirements can oblige us to forward personal data to third parties.
If a court order obliges us to forward personal data to third parties, we will have to comply.
Your personal data is not shared with third parties for commercial purposes. This rule knows one exception. Sometimes we organise an event together with a third party, like an event or a seminar. In that case, only the necessary contact data are exchanged.
Personal data can also be forwarded to third parties in case of a reorganisation or a merger of our company or the sale of (part of) our company to a third party.
Term of saving the personal data
We save the personal data it processes for the term necessary for the purpose of processing or, if such is the case, for the term required by law.
Security
We take care of fitting technical and organisational (security) measures for the personal data in accordance with the applicable legislation.
Use of cookies
Our website uses technical and functional cookies and analytical cookies that do not infringe your right of privacy. When you visit our website for the first time a notification pops up in your screen asking your explicit approval for the use of these cookies. A cookie is a small text file that is saved on your computer, tablet or smart phone the first time you visit this website. The cookies we use are necessary the technical functioning of the website and your user comfort. They ensure that the website functions correctly and, e.g., they remember your preferences. Also, we can use the cookies to optimise our website. You can sign off from the cookies by adjusting your internet browser switching off the storage of cookies. Furthermore, you can delete information that has been stored through the set-up in your browser. Also, you can delete the cookies from your hard disk and switch off the cookies in your browser.
Google Analytics
We use Google Analytics to monitor the use of the website by its users and to assess the effectiveness of our Adwords in Google search results. The information obtained is transferred to Google, including the your computer’s IP address. Google saves this data in the USA. Please read Google’s privacy statement and the Google Analytics privacy policy for further information.
Google uses the information to monitor the way our website is visited, to report to us on the website and to inform its advertisers on the effectiveness of their campaigns. Google can forward this information to third parties if Google is legally obliged to do so or if these third parties process information for Google. We cannot influence this. We have not permitted Google to use the Analytics information for other Google services.
Questions or complaints?
Everybody can invoke certain rights with respect to his/her personal data by virtue of the GDPR. In specific circumstances you are entitled to view your personal data or to have your personal data rectified or deleted. Also, in specific circumstances you can complain against the use of your personal data or ask for the use to be limited. In specific circumstances you can even have your personal data transferred to a third party. If you have any questions, please contact us.
Amendments to the Privacy Statement
We are entitled to amend this ‘privacy statement’ at any time and for whatever reason.