GENERAL TERMS
Effective as of July 1, 2021
I. Legal services
1. Advocatenkantoor Adsum Aruba V.B.A., active under the name Adsum Aruba, is a private company with limited liability with registered address at L.G. Smith Boulevard 62, Miramar Building, unit 303, Oranjestad, Aruba.
2. Adsum Aruba is registered at the Aruban Chamber of Commerce under number H41817.0.
3. The name Adsum Aruba indicates the company as well as each individual attorney, advisor or representative involved in handling the file entrusted to Adsum Aruba for legal advice.
4. These general terms shall also apply to any supplemental and further client assignments, even if no further reference is made to their applicability.
5. Adsum Aruba will be entitled to engage third parties in connection with the performance of an engagement. As far as reasonably possible, Adsum Aruba will discuss this with the client in advance. Adsum Aruba will, however, be entitled to engage the services of a bailiff or a courier company without consultation. Adsum Aruba will be entitled to accept, also on behalf of the client, any liability restrictions stipulated by these third parties. Adsum Aruba accepts no liability for fees or expenses charged by external professionals. The client agrees to reimburse fees and expenses charged by external professionals engaged with the approval of the client.
II. Scope of the services
6. Adsum Aruba will carry out an assignment exclusively for the benefit of the client. Third parties cannot derive any rights from the assignment and from the work performed either in the light thereof or otherwise. The client will indemnify Adsum Aruba against any claims made by third parties, including the reasonable costs of legal assistance, that are in any way related to the work performed for the client.
7. Adsum Aruba supplies legal and debt collection services only. The legal services shall not cover any advice on tax, commercial, financial, or accounting matters. In addition, Adsum Aruba will not advise on the ability of any party to meet its financial or other obligations. Adsum Aruba may express views on issues related to other jurisdictions, but this does not constitute legal advice and Adsum Aruba does not assume liability for the correctness of those views.
8. The client will supply Adsum Aruba with all relevant information and documents related to the assignment and keep Adsum Aruba informed of any change in circumstances. Following completion of the assignment Adsum Aruba need not amend or update any information, opinions or documents supplied to or prepared for the client as a result of amendments to or revocation of legal acts, development of case law or change in circumstances.
9. The applicability of articles 404 and 409 of Book 7 of the Aruban Civil Code is explicitly excluded.
III. Fees and invoicing
10. The client pays Adsum Aruba for legal services supplied based on the provisions set out in the engagement letter or as agreed between the client and Adsum Aruba via email. If hourly rates are agreed, Adsum Aruba charges the client for the time spent on behalf of the assignment in a time-tracking system. The minimum time tracking unit will be six minutes.
11. Adsum Aruba may require an advance from the client, both prior to or during the performance of an engagement, before commencing or continuing the work. Any advance will be settled upon conclusion of the engagement.
12. Adsum Aruba is entitled to change agreed hourly fee rates unilaterally upon notice to the client at least 30 calendar days in advance. If the client does not accept the new hourly fee rates, the client may terminate the agreement by notice to Adsum Aruba within 30 calendar days from the date of notice. If termination does not occur, the new rates will apply.
13. Fee estimates provided by Adsum Aruba are always indicative and based on information available to Adsum Aruba at the time the estimate is given. These estimates are by their nature inexact because of unforeseeable circumstances and therefore our actual fees, disbursements, and other charges may vary from our estimates.
14. Adsum Aruba may take such action as it considers necessary or advisable in order to carry out the assignment and may incur reasonable out-of-pocket expenses in performing the assignment (including, but not limited to, costs associated with translations, court registration fees, stamp duties). The client agrees to pay for those out-of-pocket expenses in addition to the attorney fees.
15. Adsum Aruba invoices on a monthly basis. The term for payment of an invoice is 14 calendar days. If the client has not raised reasonable objections about the invoice within the payment deadline, the client is deemed to have accepted the invoice and the services supplied. Objections to the amount of an invoice will not suspend the payment obligation.
16. Taxes (such as BBO/BAVP/BAZV) are added to fees in the cases and at the rate set by the Law. If the client is required to deduct or withhold any taxes or other sums (such as bank charges) from any amount payable under an invoice of Adsum Aruba, then the client will pay and bear such taxes or other amounts, and ensure that Adsum Aruba receives the full amount of the invoice as if no such deduction or withholding was required.
17. If the client is in default, all reasonable costs incurred to obtain an extrajudicial settlement will be borne by the client. The extrajudicial costs are hereby determined at 15% of the invoice amount, subject to a minimum of Afl. 50,-. If an invoice or advance is not paid within the term of payment, Adsum Aruba may suspend its work. Adsum Aruba will not be liable for any loss or damage arising as a result of such suspension of work. In addition, Adsum Aruba is entitled to charge interest at the rate of 1.0 % per month on the overdue amount until payment in full has taken place.
18. The client will not be entitled to set off the invoice against an (alleged) claim against Adsum Aruba. The client agrees that Adsum Aruba will set off its invoice(s) against that which belongs to the client and which Adsum Aruba or its affiliated Stichting Derdengelden (Adsum Aruba’s third party account) is in possession of or gains possession of.
19. Invoices are sent to the client in electronic form to the e-mail address indicated in the engagement letter or agreement and without a physical signature.
IV. Conflict of interest
20. Before accepting the assignment, Adsum Aruba conducts an internal conflict-of-interest verification in order to ascertain that the law firm is free to accept the assignment. Notwithstanding the verification procedures, circumstances may arise that prevent Adsum Aruba from acting for the client in an ongoing or future matter. In these situations, Adsum Aruba may terminate the agreement.
21. Unless otherwise agreed upon, the agreement does not create exclusivity. The client may use the services of other law firms. Adsum Aruba may supply legal assistance to other persons and execute assignments not related to the assignment, including supply of services to persons operating in the same industry as the client, or persons with interests potentially adverse to the interests of the client.
V. Electronic communication, IT systems and original documents
22. The client agrees to exchange communication electronically. The client is aware of the risks deriving from electronic communication: messages may get delayed or lost, confidential and personal information may be intentionally or unintentionally modified, or stolen or disclosed to third parties. Adsum Aruba is not liable for risks related to electronic communication. Measures taken to protect electronic communication, and to ensure its confidentiality and preservation by Adsum Aruba may in certain cases block an e-mail communication from the client. The client will follow up on important e-mail messages by phone or request Adsum Aruba to confirm receipt of an e-mail.
23. Adsum Aruba uses commercially produced IT systems (including electronic communication systems, time tracking platforms, client relationship management and document management systems) which contain information on clients of Adsum Aruba, legal services supplied to them, and documents related thereto. After completion of the assignment or termination of the agreement, Adsum Aruba returns all original documents in its possession in relation to the assignment.
VI. Know your customer and tax information
24. Under the regulations on prevention of money laundering and terrorist financing and non-proliferation and application of financial sanctions (“AML Rules”), in certain situations Adsum Aruba must identify the client, persons acting on the client’s behalf, and ultimate beneficiaries of the client. It may also be Adsum Aruba’s duty to determine the origin of the client’s assets (source of funds) in certain situations.
25. Adsum Aruba may be obliged to decline or suspend an assignment and report to the authorities if the client fails to provide the required information, if a transaction is suspicious, or if there is a suspicion of assets being used for terrorist financing or money laundering. Although Adsum Aruba is professionally and legally obliged to avoid disclosing information concerning its clients and legal services supplied to them, applicable law may require Adsum Aruba to inform the authorities of transactions involving use of cash in excess of the defined thresholds, or if it becomes known to Adsum Aruba or the law firm has reason to suspect that any given transaction carried out in the client’s name may be in violation of applicable AML Rules.
26. If it appears to be necessary for Adsum Aruba to give notice of money laundering at any time while acting on behalf of the client, the law firm may not be permitted to inform the client about notification or the reasons for it.
27. In certain cases defined by the law, Adsum Aruba may have to provide information to the Tax Authority on the company turnover taxes, registration number of the client and the value of services purchased by the client. Additionally, in certain cases the authorities and trustees in bankruptcy may require submission of invoices issued by Adsum Aruba and annexes thereto.
28. Adsum Aruba may also make information available to outsourced service providers if the law firm has outsourced certain activities related to AML Rules and to commercial banks and other providers of financial services to enable them to perform their statutory obligations related to enforcement of AML Rules. The client understands and accepts that such measures, being mandatory obligations of the law firm, do not constitute a breach of professional secrecy provisions.
VII. Personal data
29. Adsum Aruba processes personal data about the client and persons directly related to it (e.g. employees, representatives, counterparties) in line with laws applicable to protection of personal data, for, e.g., the purposes of performing under the agreement, administering billing and accounting systems, maintaining its internal information systems, managing client relationships and complying with its legal obligations. Persons whose personal data are processed by Adsum Aruba are entitled, under the law, to obtain information on personal data processed by the law firm and to request that Adsum Aruba rectify or erase their personal data, subject to applicable legal limitations.
30. Adsum Aruba may transfer personal data of the client and persons directly related to it to third parties where this information is needed for performance of the client’s assignment such as ‒ but not limited to ‒ other advisers who may be engaged by the law firm or to which the client’s assignment may be transferred, or other related purposes.
VIII. Intellectual property, confidentiality
31. Copyright and other intellectual property rights in all work product generated by Adsum Aruba in the course of the assignment belong to Adsum Aruba. However, the client may use such attorney work product for the purposes for which the client has received the product.
32. Subject to the law and the provisions within these general terms, Adsum Aruba will keep confidential client information that becomes known to Adsum Aruba while supplying legal services in line with the rules of professional conduct. If necessary for the supply of legal services, or if the obligation derives from the law, Adsum Aruba may disclose to third persons (including notaries, translators, banks and government authorities) confidential information and documents regarding the client without separate consent from the client. If the client instructs Adsum Aruba to use the services of other service providers for supply of legal services or if the client agrees to the use of other service providers suggested by Adsum Aruba, the law firm may, unless clearly agreed otherwise, disclose to them such confidential information and materials as Adsum Aruba considers necessary for the overall performance of the assignment.
33. Adsum Aruba is also entitled to disclose information entrusted to it by the client and/or relating to legal services supplied to the client by Adsum Aruba in the course of internal review and/or professional investigation either in disciplinary or ethics procedures, when the review or investigation is conducted under the rules of the Supervisory Council for the Legal Profession (“Raad van Toezicht voor de Advocatuur”), as established in the Ordinance on Attorneys at Law (“Advocatenverordening”).
IX. Limitation of liability
34. In the unlikely event that as a result of acting or failing to act an occurrence arises upon carrying out an assignment which leads to liability to clients and third parties on the part of Adsum Aruba, this liability shall be limited at all times to the amount to which Adsum Aruba is entitled in the case concerned under the professional liability insurance taken out by Adsum Aruba, including the amount of the excess carried by Adsum Aruba in connection with that insurance.
35. If and insofar, for whatever reason, no payment takes place under the professional liability insurance taken out by Adsum Aruba, the liability of Adsum Aruba will be limited to an amount equal to the fee, exclusive of taxes and disbursements, that, in the period of twelve months prior to the month in which the liability-creating event – if it is a series or continued event, the commencement of that series/the first moment of those events – occurred, has been invoiced by Adsum Aruba to the client in respect of the relevant engagement and has been paid by the client within the term of payment, subject to a maximum of Afl. 20.000,-. The term “liability-creating event” includes both acts and omissions.
36. The client is entitled to claim this limited amount from Advocatenkantoor Adsum Aruba V.B.A. only. Any action for damages against employees, lawyers or directors of the practices with legal personality in which certain partners perform their work is excluded. This third-party clause has been stipulated for the benefit of the persons mentioned who will be able to rely on this provision at all times.
37. Adsum Aruba is not liable for possible shortcomings by third parties who have been engaged by Adsum Aruba.
38. Adsum Aruba is liable only to the client who entered into the agreement with the law firm and is not liable for damage that may be caused to any third person.
39. Adsum Aruba is not liable for consequential loss, loss of profit or non-proprietary damage. Without limiting the generality of the foregoing, if the client has been advised in the same matter by an advisor other than Adsum Aruba, the liability of Adsum Aruba is always limited to its pro rata share of the total damage.
X. Termination of agreement
40. The client may terminate the agreement at any time by notifying Adsum Aruba in writing. Adsum Aruba may terminate the agreement for any reason by serving a 14 calendar day prior written notice or for valid reason with immediate effect. A valid reason for termination by Adsum Aruba includes the emergence of a conflict of interests, the client’s material breach of this agreement, the client’s failure to pay fees and costs of Adsum Aruba in a timely manner, the client’s refusal to cooperate with Adsum Aruba or to follow the law firm’s advice on a material issue, or any fact or circumstance that would render the law firm’s continuing representation unlawful or unethical, including where Adsum Aruba identifies an activity or facts whose characteristics refer to the use of criminal proceeds or terrorist financing or to commission of related offences or an attempt to do so or with regard to which the law firm suspects or knows that it constitutes money laundering or terrorist financing or the commission of related offences.
41. Upon termination of the agreement, the client will pay to Adsum Aruba any outstanding fees for legal services supplied, as well as expenses incurred before and up to termination of the agreement.
XI. Governing law
42. The agreement is governed by Aruban law.
XII. Claims
43. If the client has a complaint or claim regarding activities by the attorney or other person engaged by Adsum Aruba in performing an assignment, it must be delivered to Adsum Aruba in writing. Claims for damages shall expire after a period of one year from the day following the day on which the client became aware of the damages and Adsum Aruba as the liable party.
44. If the client’s claim against Adsum Aruba is based on a claim by a third party (including public authorities) against the client, Adsum Aruba may respond to and settle the claim with the third party on behalf of the client, provided that Adsum Aruba indemnifies the client for any direct damage related to it. If the client settles a claim, compromises or otherwise takes action relating to the claim without the law firm’s consent, the law firm has no liability for the claim. If the client is compensated by Adsum Aruba or by the insurers of the law firm in respect of a claim, the client assigns the right of recourse against third parties to Adsum Aruba or, if requested by the law firm, to its insurers.
XIII. Disputes
45. Any dispute, controversy or claim arising out of or relating to the agreement is settled by negotiation. Failing amicable settlement, the dispute must be referred to either the Supervisory Council for the Legal Profession (“Raad van Toezicht voor de Advocatuur”), as established in the Ordinance on Attorneys at Law (“Advocatenverordening”) or the Court of First Instance of Aruba.
XIV. Notices
46. All notices, requests, demands and other communications under this agreement must be in writing or via e-mail and will be deemed to have been duly given when delivered in person, sent by courier, registered mail, ordinary mail or e-mail at the addresses of the parties indicated in the engagement letter or agreement. Each party will promptly notify the other party of any change to its contact details.
XV. Amendments
47. These general terms will be available for inspection at the office of Adsum Aruba. They will be handed to the client at the time of confirmation of the engagement, or will, if this is not reasonably possible, be sent immediately on request, without charge. These general terms are also available on the website www.adsumaruba.com. Adsum Aruba may unilaterally amend these general terms at any time, notifying the client by e-mail at least 30 calendar days in advance. Adsum Aruba publishes amendments to the general terms on its website. If the client does not agree with an amendment to the general terms, the client may terminate the agreement in line with article 40 and 41 of these general terms.
Adsum Aruba Law Firm
At Law Firm Adsum Aruba we apply high standards of professional ethics and are dedicated to excellence. We believe in the adage “one size fits none” the work method is tailored to meet our client’s needs.
Our attorneys strive to be the go-to persons for each and every client in a responsive manner, hence the business name “Adsum”, which is Latin for “being present” or “at hand”.