General terms and conditions of BVCM Collections B.V.
Filed with the Chamber of Commerce dated October 15, 2019
1. Definitions
BVCM: In these general terms and conditions BVCM means both BVCM Collections B.V. in Amsterdam and BVCM Antilia N.V. in Curaçao, unless otherwise indicated in these general terms and conditions.
Assignment: The agreement between BVCM and the Principal, whereby BVCM endeavors to provide certain services for the benefit of the Principal.
Client: The natural person or legal entity that has entered into a contract (of Assignment) with BVCM and for whom BVCM makes every effort to perform that assignment.
2. General
2.1 These general terms and conditions are applicable to all legal relationships, including offers, quotations and agreements entered into between BVCM and Client.
2.2 Agreements deviating from these general terms and conditions are only binding for BVCM if expressly confirmed by BVCM in writing.
2.3 BVCM is authorized to refuse an Order, possibly without giving reasons.
2.4 BVCM provides a best-efforts obligation and can therefore never be held liable for the lack of a certain collection result.
2.5 All amounts stated are exclusive of VAT (OB to Curaçao), government levies and other costs, unless stated otherwise.
2.6 If proper performance of the Assignment requires that a third party be engaged, BVCM is entitled to do so and the Client is obliged to pay the costs thereof to BVCM in accordance with article 3 of these general terms and conditions.
2.7 The Client is obliged to keep all information provided to it by BVCM in the context of the Collection Order confidential and not to transfer it or make it available to third parties.
2.8 A client who has entered into a contract with BVCM once on these terms and conditions will be deemed to have tacitly agreed to the applicability of these terms and conditions for any subsequent assignments given by him orally, in writing, by telephone, telegraphically or in any other manner, regardless of whether such an assignment is accepted in writing.
3. Payment obligations
3.1 Payment of the amounts invoiced by BVCM must be made without any deduction or setoff within 14 days of the invoice date.
3.2 If the Client has not arranged for payment within 14 days after the invoice date, the Client will be in default by operation of law without further notice of default and will owe contractual interest equal to 1.5% per month (or part thereof) on the amount due from the due date.
3.3 If the Client has not ensured payment within 14 days after the invoice date, the Client shall also be liable for all extrajudicial and judicial collection costs after the due date. The extrajudicial costs are deemed to be at least 15% of the principal sum, with a minimum of Naf. 40 in the case of BVCM Collections B.V. in Amsterdam and a minimum of Naf. 250 in the case of BVCM Antilia N.V. in Curaçao.
3.4 Payments made by the Client will primarily serve to pay the interest due referred to in paragraph 2 of this article 3 and furthermore the judicial and extrajudicial costs referred to in paragraph 3 of this article 3 and will thereafter be deducted from the oldest outstanding claim.
3.5 BVCM may always set off outstanding invoices or other claims it has due from the Client against counterclaims the Client has against BVCM, for whatever reason.
3.6 BVCM is entitled to request an advance payment from the Client for work to be carried out by it and will only be obliged to perform (further) after the Client has made this advance payment.
4. Provision of proof and data
4.1 The Client undertakes vis-à-vis BVCM to provide the latter with all necessary data and supporting documents to be able to proceed with collection.
4.2 The Client guarantees the accuracy and completeness of this information and supporting documents.
4.3 The costs for obtaining additional information will be charged by BVCM to the Client at the agreed prices.
4.4 The Client will promptly notify BVCM regarding all payments, correspondence or other contacts between the Client and the debtor(s) or relevant third parties.
4.5 The Client will not make arrangements with the debtor(s) regarding the claim presented for collection until after BVCM has been consulted.
5. Amounts collected
5.1 If within 24 hours after receipt of the order a (partial) payment of the outstanding claim is received, BVCM is entitled to charge its commission. If it appears within 24 hours that a cross-payment has taken place, the order may be withdrawn free of charge at BVCM's discretion.
5.2 The client will owe BVCM the agreed collection commission on the collected amounts (regardless of to whom payment is made and regardless of BVCM's efforts). Amounts collected should include all payments made to the Client, reductions and/or cancellations by the Client since the date of the collection order including credit notes, reciprocal settlements, payments in kind and returned goods.
5.3 Where possible, BVCM will include any interest and collection costs in the debtor's claim.
5.4 Amounts collected by BVCM, possibly after setting off any past due invoices and/or commission statements, will in principle be made payable to the Client once a month unless expressly agreed otherwise in writing.
5.5 For BVCM, any partial payments to be received will be paid monthly after deduction of the agreed commission percentage and other costs, unless expressly agreed otherwise in writing. BVCM is also entitled to deduct notes and commission, as an advance on the final invoice, on partial payments.
5.6 If the Client decides for whatever reason to terminate the order prematurely, the Client will owe BVCM the fully agreed collection commission, as if the entire principal sum had been collected.
5.7 Payments by BVCM will be made in Dutch currency unless expressly agreed otherwise in writing.
5.8 For receipts in foreign currency, BVCM will use the exchange rate on the day of receipt for settlement.
6. Commission
6.1 The Client will owe BVCM the rates (commission) according to BVCM's regular Incasso Agreement, with due observance of what is stated in article 5 of the general terms and conditions, unless expressly agreed otherwise in writing.
6.2 Sales tax due will be charged to Client.
6.3 If, after the claim has been processed by BVCM, the Client terminates the order, arranges payment itself or frustrates the processing in any way, including refusing to initiate legal collection proceedings, the full agreed commission will be due on the full amount of the claim, in addition to any other (legal) costs due.
6.4 Commission will be due if, due to the client's failure to comply with statutory provisions, BVCM is unable to collect the extrajudicial costs from the debtor.
6.5 BVCM reserves the right to change its rates up to three months after the conclusion of the Assignment, which also applies to current assignments. BVCM will send the Client the new rate list in good time before the effective date.
6.6 In the event that BVCM Antilia B.V. in Curaçao and/or its agents collect additional costs from the debtor in addition to the principal sum and interest, these costs will accrue to BVCM and/or its agents and these collected costs will not be deducted from the agreed rates in accordance with the most recent rate list.
7. Judicial Procedure
7.1 Unless expressly agreed otherwise in writing, a collection assignment to BVCM is deemed to be a power of attorney to take such legal action as BVCM deems useful to effect effective collection.
7.2 For taking legal measures BVCM is entitled to request a cost advance.
7.3 All costs associated with legal proceedings (such as bailiff's fees, court registry fees, lawyer's fees, etc.) will be at the principal's expense.
7.4 Legal measures will not be taken until the debtor has been demanded to pay by BVCM in writing at least once, unless special circumstances make the taking of legal measures immediately necessary.
8. Suspension
8.1 If the Client is in default of correct and/or timely performance of one or more of its obligations, BVCM is entitled to immediately suspend its own obligations and BVCM retains the right to claim damages.
8.2 BVCM is not liable for any damage that may arise as a result of suspension of its activities on this ground.
9. Dissolution
9.1 If the client is in default of correct and/or timely fulfillment of one or more of its obligations, BVCM is entitled to terminate the assignment without being liable to pay any compensation.
9.2 Upon dissolution, the handling of all the client's files will be discontinued and returned.
9.3 In the event of dissolution, the client will owe BVCM the fully agreed collection commission, as if the entire principal sum had been collected.
10. Irrecoverability
10.1 BVCM is free at all times to return an Order in whole or in part due to irrecoverability.
10.2 In this case the Client will only owe commission on the amount collected.
11. Complaint period
11.1 Client is obliged to notify BVCM in writing of complaints with regard to the activities carried out by BVCM and/or the invoice amount within 14 days after the date of dispatch of that in respect of which he wishes to make a complaint, or immediately after he has discovered that about which he wishes to make a complaint. In the latter case, Client must demonstrate that he could not reasonably have discovered the matter he wishes to complain about earlier.
11.2 The Client is not authorized to suspend its payment obligations due to complaints as referred to in Article 11.1.
11.3 If and insofar as the Client makes a justified complaint in BVCM's opinion, BVCM is authorized, at its own discretion, either to adjust the invoice amount, or to improve or redo the work in question at its own expense, or to refund any commission already paid without further performance of the Assignment.
11.4 If Client has not filed a complaint within the term set forth in article 11.1, all rights and claims on any account whatsoever will lapse with regard to what Client has complained about or could have complained about within that term.
12. Liability
12.1 Should BVCM be liable, liability will be limited to what is regulated in this article.
12.2 BVCM's liability for Client damage caused by the late, incomplete or improper execution of the assignment is limited to the amount that could be charged to the Client in the commission in the case in question. However, any compensation owed by BVCM to the client will never exceed the amount for which BVCM's liability is covered by insurance. The foregoing is an exception in the event of intent or equivalent gross negligence on the part of BVCM. In this and the following provisions of this article BVCM includes its employees as well as any third parties it engages in the performance of the assignment.
12.3 BVCM is never liable for indirect damage, including consequential damage, loss of profit, damage due to business interruption and the like.
12.4 BVCM is not liable for damage which is caused because the Client has not complied with its obligation to provide information pursuant to article 4 or because the information provided by the Client does not comply with what it guarantees pursuant to article 4.2.
12.5 BVCM is always authorized to limit or undo the client's damage as much as possible, to which the client will fully cooperate.
12.6 BVCM accepts no liability for loss of currency.
12.7 Client will indemnify BVCM against claims from third parties for damage related to or arising from the assignment carried out by BVCM and is obliged to reimburse BVCM for the reasonable costs of defending such claims.
12.8 In case of system failures, in the broadest sense of the word, at BVCM or its suppliers or partners, BVCM is not liable for any damage resulting therefrom for Client. Such failures will be considered force majeure, with application of article 12.9 In case of force majeure on the part of BVCM, including fire, strike or hindrance as a result of third parties not fulfilling their obligations, BVCM will be entitled to postpone the work, just as long as the force majeure situation continues, or to terminate the agreement, without being obliged to pay any compensation.
13. Due date
13.1 Without prejudice to the provisions in clause 11, if the client is or remains of the opinion that BVCM has not carried out the order in a timely manner, fully or properly, the client is bound to immediately inform BVCM in writing - unless this has already taken place on the basis of the provisions in clause 11.1, he will immediately notify BVCM of this in writing and to enforce the claims based on this in court within one year after the date of the notification referred to above, or within one year after this notification should have been made, failing which all his rights and claims in this regard will lapse upon expiry of the period referred to above.
14. Settlement
14.1 The client is never authorized to set off any amounts, unless BVCM has given its express permission for this.
15. Conversion
15.1 If one or more provisions in these general terms and conditions is null and void or annullable, the other provisions will remain fully applicable.
15.2 The parties will then agree new provisions to replace the void or nullified provisions, taking into account as much as possible the purpose and meaning of the original provision.
16. Concern clause
16.1 Client hereby irrevocably consents to BVCM transferring its rights and obligations under the assignment, in whole or in part, to a subsidiary and/or group company of BVCM and/or to a company of which BVCM conducts the management.
17. Applicable law and choice of law BVCM Collections B.V. in Amsterdam
17.1 All legal relationships, including offers, quotations and agreements entered into between BVCM Collections B.V and Client are governed by Dutch law.
17.2 Disputes, including disputes that are only considered as such by one party, will be exclusively settled by the court in Amsterdam, unless rules of mandatory law dictate otherwise.
18. Applicable law and choice of law BVCM Antilia N.V. in Curaçao
18.1 All legal relationships, including offers, quotations and agreements entered into between BVCM Antilia N.V. and the client will be governed by the laws of Curaçao.
18.2 The court of first instance of the Netherlands Antilles, place of session Curaçao, has exclusive jurisdiction to take cognisance of disputes, including disputes that are only regarded as such by one party, unless rules of imperative law dictate otherwise.