Terms and Conditions

General Terms & Conditions of Probe-ASP B.V. with trade name AVICLAIM

Last update: 05-09-2019

Definitions:

1. The following definitions apply to this contract:
   
   ProBe-ASP B.V.: limited liability company ProBe-ASP B.V., also known by its trade name Aviclaim (hereinafter Aviclaim), registered in the chamber of commerce under number 01169860, whose registered office is in Waterhuizen;
   
   Claim: client's request to the air carrier based on Regulation (EC) 261/2004.
   
   Airline: A company that has offered air transportation to the client, or intends to offer it.
   
   Client: The client of Aviclaim, also being the person who claims against the airline. One client can represent several people for Aviclaim.
   
   Contract: An agreement between the client and Aviclaim, in which the client grants a power of attorney to Aviclaim to collect the claim.
   
   Extrajudicial procedure and mutual agreement procedure: the extrajudicial procedure means that Aviclaim will discretionally write and send letters to obtain the compensation. The mutual agreement procedure means that Aviclaim requires the airline to pay the compensation.
   If the compensation is not obtained during the extrajudicial procedure, Aviclaim will decide whether to start a mutual agreement procedure. Through this process, Aviclaim will send summons and payment requests to the airline. 
   
   Judicial procedure: Judicial Debt Collection of the claim by and/or on behalf of Aviclaim, in its own name or in the name of the client, including (but not exclusively) writing summons and/or initiating legal proceedings against the airline, negotiating with the airline and reaching an amicable settlement.

In general

1. These terms and conditions are applicable to all contracts between the client and Aviclaim. The contract between Aviclaim and the client arises when the client submits the claim to Aviclaim.

2. Aviclaim shall submit a claim on behalf of the client to obtain the compensation for delay, cancellation, missed connection and overbooking based on EC Regulation 261/2004.

3. If Aviclaim decides to process the claim, Aviclaim will make reasonable efforts to obtain the compensation.

4. Aviclaim will treat confidentially all personal data of the client. As part of the normal operation of Aviclaim, the client confers to Aviclaim the consent to process the personal data provided by the client and its use pursuant to Article 8 of the Data Protection Act.

5. The terms and conditions also apply to the legal partners of Aviclaim. The client also authorizes to provide personal data to such employees when necessary.

6. Aviclaim does not guarantee the collection of the claim from the airline. Aviclaim will not notify the client of any action it performs but will keep the client regularly informed about the status of the process through email, the Customer Portal and/or telephone conversations. Aviclaim advices do not generate any rights. Aviclaim is not liable for any consequence of the client's abandonment of the (regular) reading of messages sent by Aviclaim and/or in the Customer Portal.

7. Aviclaim may, without giving cause, terminate the claim at any time, either during the extra judicial or judicial process. From that moment, Aviclaim will not be obligated to make any effort with regards to the claim.

8. This contract between the client and Aviclaim can be terminated in 3 ways, namely (1) the claim is terminated by Aviclaim in writing, (2) the compensation is obtained, or (3) the contract is terminated by the client. If the client terminates the contract in advance, the terms and conditions of Articles 16, 17 and 18 shall apply.

Obligations of the client

9. The client declares that the information provided to Aviclaim is accurate and truthful.

10. The client declares that Aviclaim is informed about all the correspondence which has been conducted with the airline to date.

11. The client is deemed to comply with the instructions of Aviclaim and execute them. Aviclaim is not liable and/or responsible for the loss of time and / or the expiration of terms as a result of the negligence of the client. If the client does not comply with these instructions within a period of 3 months, Aviclaim may charge 35% of the claim amount.

12. The client is not authorized to communicate directly with the airline during the out-of-court procedure, mutual agreement procedure or judicial procedure. Aviclaim is not liable for damages or losses arising from the actions of the client against the airline.

13. The client is obliged to notify Aviclaim of any communication that occurs with the airline within seven days of such communication. If the client has had contact with an airline and has not informed Aviclaim within 7 days, Aviclaim may charge a maximum of 35% of the compensation for the expenses in which it has incurred.

14. The client is not authorized to transfer the claim to third parties during the process unless agreed in writing with Aviclaim.

15. The client is, except within a period of 14 days, not allowed to terminate the contract unless explicitly agreed in writing with Aviclaim.

16. The client is not entitled to terminate the contract within the aforement period of days, as soon as the client has agreed to commence the performance. The client gives explicit consent that the performance is commenced by signing the power of attorney.

17. The client is not permitted to submit the claim to a (claim) organization other Aviclaim. If client does so, Articles 18 and 20 apply. 

18. If the client acts in violation of articles 9 until 17 of the General Terms and Conditions or accepts an offer from the airline without express and written authorization from Aviclaim, the client shall pay an amount equal to 35% of the total amount of the claim to Aviclaim. This amount shall be paid to Aviclaim within 14 days from the date of termination and/or transfer of rights.

19. If the client has not stated that there is an ongoing case and an extra judicial process, or a legal process has already been started against the airline, the client owes an amount of 35% of the claim and any costs incurred to Aviclaim. This amount shall be transferred to Aviclaim within 14 business days from the reception of the invoice. In addition, the client is obliged to reimburse the costs already incurred by Aviclaim for the legal process.

20. If the compensation (or part of it) is obtained by Aviclaim or the client, the client shall pay to Aviclaim 29% of the total compensation amount, unless Article 18 is applicable.

21. If the client's contact information changes after the contract is signed, the client shall notify Aviclaim immediately, or within seven days after. Aviclaim will not be liable for the loss of time, the expiration of terms and other possible consequences derived from providing incorrect contact details or non-disclosure of the client’s changes.

22. Aviclaim is exempt from liability, unless there is wilful misconduct or gross negligence. This disclaimer includes direct damage, material damage, loss of profits and business interruption in any way and for any reason.

Data protection

23. In the context of the implementation of the contract, ProBe-ASP B.V. processes the (personal) data supplied by the client. ProBe-ASP B.V. applies and complies with the provisions of the applicable privacy legislation, including the General Data Protection Regulation. 

24. ProBe-ASP B.V. wil, without permission, not disclose any (personal) data to third parties, except and to extent that this is necessary for the execution of the contract.

25. ProBe-ASP B.V. will, upon request of the client and / or claimant(s), remove the personal data from its database, provided that the client and / or claimant(s) have me their financial obligations under the contract and that the data is necessary for ProBe-ASP B.V. in order to obtain the payment. Only the client can change or let change data (online). Upon request, ProBe-ASP B.V. can provide an overview of the data of the client and / or claimant(s). 

26. The personal data collected by ProBe-ASP B.V. will not be kept longer then necessary to achieve the purposes they are collected for and used. The retention period for the collected data of closed cases/claims will be a maximum of 6 months. 

Power of attorney

27. The client gives Aviclaim the authority to represent the client by signing a power of attorney. Client hereby gives Aviclaim the power of attorney to collect the claim in the extrajudicial process and judicial process, and thereby do whatever it deems necessary to achieve this. The power of attorney has already been granted to Aviclaim upon entering into the agreement. 

Mutual agreement procedure

28. Aviclaim will decide on the initiation of a mutual agreement procedure on the basis of the information provided to Aviclaim and the correspondence with the airline. If Aviclaim considers that the mutual agreement procedure is not convenient for any reason, Aviclaim may refrain from initiating this procedure without providing any explanation. The authorization of the client will be requested before Aviclaim starts the mutual agreement procedure or any subsequent judicial procedure. 

Judicial procedure 

29. Aviclaim reserves the right to decide whether or not to initiate legal procedures. Aviclaim has the right to refrain from initiating a judicial procedure if Aviclaim considers the judicial procedure not appropriate or for any reason, without explanation.

30. The client authorizes Aviclaim to initiate the Judicial Procedure on behalf of Aviclaim or on behalf of the client. Aviclaim may reach a mutual agreement with the airline, initiate a judicial procedure or take the necessary steps to collect the claim.

31. If the client suspends the Judicial Procedure of Aviclaim for legitimate or unfounded reasons, the client shall pay any legal costs incurred.

32. For the initiation of a judicial procedure at the competent authority different terms may apply:
- 2 years for claims under Dutch procedural law.
- 3 years for claims under German procedural law.
- 6 years for claims under English procedural law.
- 1 year for claims under Belgian procedural law.

The expiry date is due when the flight should have taken place. Aviclaim is not liable for any damages that may result from a possible expiry of the claim.

33. Aviclaim conducts the judicial procedure at its sole discretion based on "no cure no pay".

Rates

34. Aviclaim works based on “no cure no pay”. Aviclaim will not make any charge in advance.

35. If the airline pays directly to the client, the latter shall notify Aviclaim within 7 days of receipt by the client. In default, Aviclaim reserves the right to invoice 35% of the total amount claimed. In addition, any costs associated with collection will be charge to the client.

36. If the airline offers compensation in a form other than in cash after the commencement of the out-of-court procedure, but before the judicial process commences, the client shall be allowed to accept it after the written permission of Aviclaim. Aviclaim reserves the right to invoice 29% of the amount initially claimed in money at any time.

37. Once the Judicial Procedure begins, the client is not allowed to accept vouchers, Air Miles or any form of compensation other than the monetary compensation. If the client acts in violation of this article, Aviclaim will charge an amount of 35% of the claim amount, excluding the costs incurred by Aviclaim for the Judicial Procedure.

38. No cost will be charged if Aviclaim does not receive compensation from the airline unless the provisions of Articles 9 until 20 of the General Terms and Conditions apply.

39. Upon successful collection of the claim, 29% of the total amount of compensation will be transferred to Aviclaim. If the airline pays this amount directly to the client, Aviclaim will charge 29% of the claim amount of compensation received unless Article 35 applies. This is irrespective of whether the collection takes place through the efforts of Aviclaim, or the client in collaboration with Aviclaim.

40. All revenue arising from efforts made by Aviclaim for the collection of the claim, such as statutory interest, receivables and all other non-specified assigned costs, are attributable to Aviclaim.

Payment 

41. 71%  of the compensation received by Aviclaim and intended for the client will be transferred to the client within 14 days of receipt of the funds if the amount received can be associated with a reference number, and the client has provided the bank details. Otherwise, Aviclaim reserves the right to make the payment within 30 days after the reference number and the bank details are known. Aviclaim is not liable for any damage resulting from the provision of incorrect bank information by the client. Aviclaim reserves the right to keep transaction costs to foreign account numbers on the compensation amount to be paid.

42. If no bank information is provided to Aviclaim after the client has been informed that the airline has granted compensation, Aviclaim will try to communicate at least in three different moments with the client within a period of four months to receive the bank details. If the client does not provide the bank details, Aviclaim reserves the right of not granting the entire compensation amount after one calendar year from the reception of the compensation.

Extraordinary circumstances

43. Aviclaim is not required to comply with any obligation to the client in cases of force majeure or a circumstance without negligence or which is due to the law, a legal act or beyond its control. Force majeure means any external cause, foreseeable or not foreseeable, to which Aviclaim cannot influence and that enables it to fulfill its obligations to the client.

Aviclaim also has the right to appeal to force majeure if the circumstance prevents (further) compliance with the contract after Aviclaim had to comply with any commitment under the contract with the client.

44. Aviclaim is entitled to suspend its obligations to the client as long as the force majeure persists.

Applicable law and competent jurisdiction 

45. Disputes with Aviclaim concerning the performance of the contract shall be submitted to the Courts of Utrecht.

Dutch law applies to the contract.