The airline that performed the flight(s) or had the intention to perform the flight(s);

Transcription

1 Standard Terms and Conditions Claimingo B.V. - December 2017 (i) Definitions i. Agreement: The Agreement on the basis of Claim&Go or No Cure No Pay; ii. Airline: The airline that performed the flight(s) or had the intention to perform the flight(s); iii. Claim: A (or several) claim(s) of a (or several) Client(s) against an Airline and/or airport based on Articles 6:72 and 6:162 of the Dutch Civil Code, Regulation (EC) No 261/2004, the Treaty of Montreal of 28th May 1999, the Turkish Regulation of Air Passenger Rights (SHY-Passenger) and/or similar legislation; iv. Claim&Go: The service by which the Client sells a Claim to Claimingo; v. Claimingo: The private company with limited liability CLAIMINGO B.V., with its registered office in (3526 KS) Utrecht, The Netherlands, at Europalaan 100, and registered in the register of the Dutch Chamber of Commerce in Utrecht under number ; vi. Client: Any legal entity and/or natural person, including his or her (legal) representative(s) and/or successor(s), that has an Agreement with Claimingo; vii. Debtor: The Airline or airport as to which a Claim relates; viii. No Cure No Pay: The service by which Claimingo submits a Claim on behalf of the Client; ix. Purchase price: The agreed amount of money between Claimingo and the Client for the sale of a Claim on the basis of the Claim&Go Agreement; 1

2 x. Services: All products and services delivered by Claimingo and/or by Claimingo engaged third parties, as well as all other work, of any sorts, performed by Claimingo on behalf of a Client in relation to an assignment, including, but not exclusively, the service Claim&Go and/or No Cure No Pay; xi. Standard Terms and Conditions: The present standard terms and conditions, titled Standard Terms and Conditions Claimingo B.V. ; and xii. Success fee: The agreed percentage of the Claim Claimingo is entitled to on the basis of the No Cure No Pay Agreement. (ii) General 1. These Standard Terms and Conditions apply to all offers and Agreement(s) between Claimingo and the Client. Claimingo is authorized to amend the Standard Terms and Conditions (unilateral). 2. When these Standard Terms and Conditions refer to Claimingo, this includes all of its employees. 3. Claimingo is a legal service provider that collects Claims of Clients against Airlines and/or airports. Claimingo requires information from the Client to that extend, including (but not confined to): (a copy or scan of) the e-ticket(s); (a copy or scan of) the boarding pass(es); and a copy or scan of a valid means of identification. 4. Claimingo only accepts Claims regarding flights: departing from an airport in the European Union; departing from an airport outside the European Union and arriving at an airport in the European Union, provided that it is carried out by an Airline with its registered office in the European Union; departing from an airport in Turkey; cancelled or delayed by actions that are attributable to an airport; and missed due to circumstances attributable to an airport. 5. When these Standard Terms and Conditions refer to the European Union, this includes Iceland, Norway and Switzerland. 6. Claimingo starts a research with regard to the chance of success of the Claim on the basis of the delivered (flight)details and/or the documents mentioned in paragraph 3. This research includes, but is not confined to, the checking of flight data and times, the length of the delay and/or cancellation, the weather at the time of the flight(s), the average delay for all relevant departure and arrival airports 2

3 within a timeframe of three hours, checking for Air Traffic Control- restrictions and all other relevant information with regard to the chance of success of the Claim. 7. An Agreement on the basis of Assignment (No Cure No Pay), in accordance with article 7:400 and further (except articles 7:404 and 7:407 paragraph 2) of the Dutch Civil Code, is concluded between Claimingo and the Client by submitting a Claim via the website or by delivering to Claimingo (flight)details in any other way. After the research as mentioned in paragraph 6 of this article is completed, Claimingo decides whether a proposal will be made to conclude an agreement on the basis of Claim&Go instead of No Cure No Pay. 8. Claimingo reserves the right to suspend or cancel the research, as mentioned in article ii paragraph 6. Client will be notified of this immediately. 9. Claimingo reserves the right to seek payment of all costs made and/or damages suffered when Client dissolves or withdraws the Agreement or offers the Claim to another party. This includes at least the costs in relation to the research (EUR 39,95, including taxes). If substantive work is performed, Claimingo can additionally charge the Success fee. See article viii paragraph 2 for a further elaboration on damages. 10. Payments due, as mentioned in the foregoing paragraph, will be invoiced. Payment must be made within 14 days on receipt of the invoice. Any collection fees due to negligence of Client will be charged to Client. 11. The Client guarantees that the Claim is not restricted, confined or in any way limited in favour of third parties. The Client also guarantees that the Claim is not susceptible for settlement in any way by the Airline. 12. The Client shall indemnify Claimingo against all third-party claims as a result of providing erroneous, inaccurate or false data and/or information and/or as a result of by Client committed fraudulent acts. 13. The remaining part of the underlying Standard Terms and Conditions remains in force, when one or more provisions appear to be void, voidable or non-binding. 14. If Claimingo uses third parties for the performance of the Assignment, the underlying Standard Terms and Conditions are also applicable to these third parties. 15. These Standard Terms and Conditions also apply to additional or amended Assignments and followup Assignments given by Client(s). (iii) Claim&Go 1. Parties enter into an Agreement only after Claimingo unequivocally and in writing (whether electronically in the form of an message) accepts the purchase of the Claim. The Client is aware 3

4 that after signing the Deed of Assignment, Claimingo becomes the exclusive owner of the Claim. By selling the Claim, the Client waives its rights towards the Airline. 2. After conclusion of the Agreement, Claimingo bears all economic and legal risks regarding the Claim. 3. If Claimingo proposes to buy the Claim of the Client, the Purchase price will depend on (i) the distance of the flight, (ii) the time the Client has reached its final destination, (iii) the country where the Airline has its statutory location, (iv) all forms of compensation already received by Client and (v) other circumstances which may be relevant for determining the amount of the Purchase price. The Client is aware that the purchase price is less than the compensation as prescribed by Regulation (EC) No 261/ Claimingo will pay the agreed Purchase price on the IBAN provided by the Client preferably within two working days after the Agreement is signed. In exceptional cases, it may be that a longer payment period will be required. 5. If the IBAN is not provided, the Purchase price will be transferred to another bank account provided by the Client. Any additional costs are fully at the expense of the Client and a longer payment period has to be taken into account. 6. The Purchase price is risk-free and does not have to be refunded when the Claim unexpectedly cannot be collected. 7. When Claimingo erroneously transferred an excessive amount of money to the Client, or when new information has shown that the Purchase price was too high, the Client must refund the excessive amount immediately. The excessive amount of money received is an undue payment as stipulated in article 6:203 of the Dutch Civil Code. (iv) No Cure No Pay 1. The Client enables Claimingo to perform all (legal) acts which Claimingo considers necessary in order to collect the Claim. The Succes fee will only be deducted in the event that a Claim is collected. The costs for research are included in the Succes fee. Any collection costs, legal costs and legal interest will solely be assigned to Claimingo. 2. In case of success, Claimingo will also charge administration costs of EUR 24,95 per person. 3. The Client will be reasonably informed by Claimingo on the progress of the case. 4. Claimingo will strive to collect the Claim from the Airline in the shortest possible period of time. 5. Claimingo has the authorisation to settle the Claim with the Airline or airport. 4

5 6. Upon request, Claimingo will provide the Client with a copy of its file including the correspondence with the Airline and the documents provided by the Client. 7. Claimingo gives no guarantees regarding the chance of success of a Claim. 8. If Claimingo concludes that the probability of success of the Claim is too low, Claimingo may refrain from legal proceedings. Claimingo will inform the Client about this decision as soon as possible. (v) No Cure No Pay The judicial route 1. Claimingo uses third parties for performing procedural acts. 2. It is at the discretion of Claimingo to determine if a legal proceeding will be initiated against an Airline or airport. Claimingo has the right to reach a settlement or implement executory powers. (vi) No Cure No Pay Payment 1. Only in case of success, Claimingo will pay the Client the collected amount (minus the Succes fee and administration costs). Payment will be made within 30 days after receiving the Claim or settlement from the Airline and/or airport. 2. The Client is not allowed to settle for any form of compensation with a lower amount than the Claim, unless Claimingo hereto indisputably and unequivocally agrees in writing. 3. If the Client fails to provide the correct bank details, Claimingo will keep the collected amount up to one year in a bank account of Claimingo. This period commences at the time the Client is informed (by e- mail) of the receipt of the amount. After this year, the collected amount will be passed on to Claimingo. 4. Claimingo transfers the Claim minus the Success fee and administration costs to an IBAN provided by the Client. 5. When an IBAN is not provided, the claimed amount or settlement minus the Success fee and administration costs will be transferred to another Bank account provided by Client. Any additional costs are fully at the expense of the Client and a longer payment period has to be taken into account. 6. In the event that payment by the Airline and/or airport is made directly to the Client, the Client is obligated to inform Claimingo of the receipt thereof within 14 days. In that situation, Claimingo is entitled to the Success fee and administration costs. Any costs made by Claimingo in relation to the Claim, will be passed on to the Client. 7. The Success fee, as mentioned in the previous paragraph will be invoiced. Payment must be made within 14 days on receipt of the invoice. Any collection fees due to negligence of Client will be charged to the Client. 5

6 (vii) Obligations of the Client 1. The Client shall at all times give full cooperation to Claimingo with regard to his Claim. 2. The Client shall immediately notify Claimingo of any new facts and/or developments that may affect the Claim. This obligation shall continue to apply after payment of the Purchase price on the basis of the Claim&Go Agreement. 3. If the contact information of the Client changes, the Client shall notify Claimingo thereof without delay. 4. If the Client acts contrary to the Agreement or the Standard Terms and Conditions, Claimingo will not be liable nor responsible for any damages or consequences. 5. The Client guarantees that all information is provided truthfully, accurate and complete. 6. After entering into the Agreement, the Client shall refrain from communicating with the Airline. It is explicitly not allowed to accept any offer from the Airline without the written and undisputable and unequivocal consent of Claimingo. 7. After conclusion of the Agreement, it is not allowed for the Client to transfer or sell his Claim to third parties unless Claimingo indisputably and unequivocally hereto agrees upon in writing. (viii) Shortcoming in the performance of the Agreement 1. If at any time it appears that the Client provided erroneous, inaccurate or false information, Claimingo is entitled to terminate the Agreement immediately. Claimingo then reserves the right to seek payment for all damages incurred. 2. The term 'damages' is understood to mean: (i) the hours worked on the Claim (EUR 150 p/hour), (ii) the costs in relation to the research (EUR 39,95), (iii) administration costs, (iv) the costs Claimingo made for the collection of the Claim, (v) the Purchase price paid to the Client by Claimingo and (vi) all other costs made by Claimingo that are associated with the damages. (ix) Force Majeure 1. Claimingo is not obliged to fulfil any obligation under the Agreement if it is hindered by force majeure or circumstances that are not attributable to its fault, nor by the law or custom. 2. The term 'force majeure' in the context of this article means: that which is understood in law and caselaw to be force majeure and all external causes or unforeseen circumstances, which Claimingo cannot influence but which prevent Claimingo to fulfil its obligations to the Client. 6

7 3. Claimingo is also entitled to invoke force majeure if the circumstance prevents (further) fulfilment of the Agreement, after the Client was required to fulfil any obligation under the Agreement with Claimingo. 4. Claimingo is entitled to suspend its obligations towards the Client as long as the force majeure continues. (x) Liability 1. Claimingo is not liable for any form of damage suffered by the Client and/or third parties. Damages are defined as, but not limited to, direct and indirect damages, emotional damages, decline in profits, business interruption and loss of any kind whatsoever. 2. Any damage caused by Claimingo, deriving for example from mandatory law, are limited to a maximum of the amount of the Claim (including taxes). 3. Claimingo is not liable for any action by the Client and/or the (in)direct consequences of their acts and/or omissions. 4. Claimingo is not liable for administrative errors or actions. This provision also applies to the third parties engaged by Claimingo. Claimingo reserves the right to correct administrative errors. 5. When the performance of the Assignment requires that Claimingo engages (legal) entities outside of the European Union, Claimingo shall not be liable for errors made by these third parties. 6. Claimingo does not guarantee that the content of s sent by it or on its behalf is correct and complete, nor does it guarantee the timely receipt of an by the Client. (xi) Promotion and promotional terms and conditions 1. Claimingo organizes promotional activities, such as giveaways and refer actions. Claimingo thereto drafts a short version of the promotional terms and conditions and publishes these on the relevant channels. Upon request, Claimingo sends a copy of these promotional terms and conditions by Claimingo reserves the right to amend the promotional terms and conditions. (xii) Special terms 1. In the event that the present Standard Terms and Conditions and the Agreement contain conflicting provisions, the provisions of the Agreement prevail. (xiii) Applicable law and competent court 7

8 1. This legal relationship between Claimingo and Client(s) is governed by Dutch law. 2. Any dispute arising between Claimingo and the Client shall be submitted to the competent district court of Midden-Nederland. 8