General Terms and Conditions of Business
These General Terms and Conditions of Business relate to the engagement by the client of Hains & Lund Recoveries Limited ("H&L") for the management of debt recovery and certain other requirements.
1. Definitions and Interpretation
"Services" means the work to be done pursuant to this Agreement.
"Commission" means the rate of commission charged to the client in respect of collections by H&L at the prevailing rate (the prevailing rate is specified in the Engagement Letter).
"Engagement Letter" means the formal Engagement Letter sent to the client by H&L – the terms contained in the Engagement Letter and herein, contain the terms upon which H&L is prepared to do business with the client.
"Recoveries" means any payments made by the client’s customer/debtor whilst H&L are instructed in the matter.
"Financial Month" means a calendar month.
"Submission Date" means the last day of each calendar month – this is the date upon which funds held by H&L are to be paid across to the client monthly (net of any commission and other applicable fees).
"Confidential Information" means any confidential information disclosed or made available by one party to the other whether scrambled and/or encoded or not and in the case of information made available by the client to H&L (whether orally or in writing and whether or not such information is expressly stated to be confidential or marked as such) in whatever form contained relating to the business of the client shall include (but without limitation) (i) lists and details of the client’s customers, employees and agents; (ii) any business method and details of any business process or procedure used by the client and (iii) details of any debts owed to the client.
2. Scope of the Work
2.1. The Services will commence upon the date of signature of the Engagement Letter.
2.2. The expeditious maximising of recovery of debt primarily at a pre-legal stage, through the use of telephone and letter based collections.
2.3. Where applicable and subject to prior approval and agreement with the client, initiation of formal legal proceedings via approved solicitors of H&L. Such proceedings may then result in enforcement action been taken via the County Court and approved High Court Enforcement Officers.
2.4. Where applicable and subject to prior approval and agreement with the client, the use of trace agents and other third party agents in order to maximise recoveries.
2.5. Provision of standard monthly reporting packs providing details of amongst other things, collections amounts (any further information required by the client not included in the standard reporting pack may be subject to additional charges, to be agreed).
3. Performance of the Services
3.1. H&L will deal with all instructions provided by the client promptly and H&L will keep the client updated in respect of actions taken via monthly reporting and ad hoc updates / requests for instructions as and when necessary.
3.2. All monies recovered by H&L pursuant to this Agreement shall be deposited in H&L’s client account and shall be held securely until remission to the client.
3.3. All monies recovered in cleared funds shall be remitted to the client on the Submission Date referable to the Financial Month in which they were received by H&L in cleared funds. Recovered monies shall be submitted to the client after deduction of commission at the prevailing rate and of any other applicable charges and expenses. For the avoidance of doubt in the case of payments made by cheque, the date of clearance shall determine the Financial Month in which the monies have been recovered.
3.4. In the event that either party so requests there shall be convened upon reasonable notice a meeting of the relevant representatives of both parties.
4. Standards of Delivery of the Services by H&L
4.1. H&L shall devote such time, attention and manpower (including management time) as may be necessary for the proper performance of this Agreement.
4.2. H&L shall undertake Services with due diligence and in a safe and competent manner.
4.3. H&L shall deliver the Services with reasonable skill and care in a timely and professional manner in accordance with the standards of best practice. H&L cannot however, make any guarantees that the debt will be paid in full and/or that any payments will be obtained.
4.4. H&L shall comply with all reasonable instructions given to it by the client in connection with the performance of its responsibilities and the conduct of its personnel.
4.5. H&L shall keep detailed records of all acts and things done by it in relation to the delivery of the Services.
4.6. H&L shall use its best endeavours to procure that any personnel assigned to deliver the Services shall have the necessary skill, expertise and experience to carry them out in accordance with the requirements of this Agreement.
4.7. H&L reserves the right to reasonably reject any instructions for reasons including (but not limited to), the debt been statute barred within the meaning of the Limitation Act 1980 and/or that the debt is uneconomic to collect and/or that the debt is in dispute.
5. Responsibilities of the Client
5.1. The client shall ensure that relevant data will be transferred to H&L in electronic format (or by an alternative method if specifically agreed between the parties – to be specified in the engagement letter).
5.2. In addition to the data transfer referred to at clause 5.1 above, where it is able, the client shall provide any further information to H&L where it is reasonably required.
5.3. Upon instructions been provided to H&L, the client must cease all activity in respect of the matter. Should the client’s customer contact it directly, the client should refer the customer to H&L.
5.4. The client shall promptly inform H&L of any monies received directly by the client in relation to instructions which are handled by H&L as part of the Services (for the avoidance of doubt, any payments received by the client directly whilst H&L are instructed are subject to commission at the prevailing rate).
5.5. In order to maximise collections, instructions will be passed to H&L as soon as is practical.
5.6. The client will respond to queries received from H&L in a timely manner.
5.7. Where approval or operational support of the client (for example for the commencement of proceedings) is required this shall be provided to H&L in a timely manner.
6. Payment and Invoicing Arrangements
6.1. Subject to the remainder of this clause 6, H&L shall be remunerated solely on the basis of commission on all recoveries at the prevailing rate per Financial Month. The prevailing rate of commission is specified in the Engagement Letter.
6.2. Where the client agrees that formal proceedings should be issued via H&L’s approved solicitors, the client shall pay all costs and expenses of such proceedings and all relevant fees. The level of such fees is to be agreed prior to such action being taken.
6.3. In the following circumstances:
6.3.1. where an instruction is withdrawn by the client, or it is necessary for a matter to be closed due to information requested by H&L not being provided by the client in a reasonable time, or;
6.3.2. where an instruction has been passed to H&L but it later transpires that the debt was paid to the client prior to H&L’s instruction: H&L shall be entitled to close the matter but charge commission to the client at the prevailing rate on the balance of the debt at the date of closure in the case of 6.3.1 above, or the instructed balance in the case of 6.3.2 above.
6.4. The client will be liable to pay any charges and expenses incurred in respect of services referred to at clauses 2.3 and 2.4 above.
6.5. Funds will be remitted to the client on a monthly basis on the submission date. The funds to be remitted to the client on the submission date are cleared funds collected in the financial month, net of commission, any other applicable charges and expenses and VAT.
6.6. Where insufficient funds are held by H&L to cover applicable commission, charges and expenses and VAT in a financial month, an invoice will be issued to the client on the submission date. Invoices are payable within 14 days of the date of the invoice. Late payment of invoices will attract further charges and interest pursuant to the Late Payment of Commercial Debts (Interest) Act 1998.
7. Termination
7.1. Subject to clause 7.2, either party may terminate this agreement by giving one calendar month’s written notice to the other party.
7.2. Either party may terminate this agreement with immediate effect by giving written notice to the other party in the event of the other party’s insolvency or material breach of this agreement.
7.3. Termination of this Agreement for whatever reason shall not affect the accrued rights and obligation of the parties arising out of this Agreement as at the date of termination and in particular but without limitation the right to recover damages against the other.
7.4. Upon termination of this Agreement for any reason all relevant documentation shall be returned to the client by H&L in an orderly manner.
7.5. Upon termination of this Agreement for whatever reason, both parties shall destroy and/or securely dispose of the other party’s Confidential Information in whatever form it is held, with the exception of any information held by the party which it is required to retain by law and/or for audit purposes.
7.6. Upon termination, H&L shall be entitled to charge commission to the client at the prevailing rate, in respect of all outstanding amounts in which it is instructed by the client at the time of termination.
8. Confidential Information
8.1. Each of the parties agrees that it will preserve and maintain the confidentiality of all and any Confidential Information supplied or obtained by it in connection with the performance of this Agreement and will not disclose any Confidential Information to a third party (unless legally required to do so by a relevant court or administrative body) or use any Confidential Information itself (except as required to perform its obligations under this Agreement) unless specifically authorised in writing by a duly authorised representative of the other party.
8.2. The obligations of this clause 8 shall not apply to:
8.2.1. information actually known to the receiving party prior to its disclosure under this Agreement or internally developed without breach of any confidential arrangement;
8.2.2. information which the receiving party can demonstrate was available to the general public or general industry knowledge at the time of its disclosure to the receiving party or which thereafter becomes available to the public or becomes general industry knowledge, without a breach of this Agreement by the receiving party;
8.2.3. information which the receiving party can demonstrate was legally furnished to the receiving party by a third party having the right to so disclose without restriction on its further disclosure.
8.3. Each party acknowledges that the other party shall be entitled to preliminary injunctive relief in order to enforce the provision of this clause 8 relating to the confidentiality of Confidential Information, in addition to and not by way of limitation upon any other legal or equitable remedies available to the parties.
9. Miscellaneous
9.1. Any notice or consent required or permitted to be given under this Agreement shall be in writing and shall be validly given if delivered personally or sent by first class post or email to the address of the other party appearing herein. Any such notice shall be deemed to have been given when it was personally delivered or served or, if sent by post, forty-eight hours after it was posted or, if by email, at the time when the email was sent, provided that notices sent by post or email shall be evidenced by a delivery receipt.
9.2. H&L is an independent contractor of the client and this Agreement does not and is not intended to create or constitute any form of joint venture, partnership, agency or other formal business arrangement of any kind between the parties other than an independent contractor arrangement. The employees, agents and sub-contractors of H&L shall in no event be considered employees or agents of the client, nor shall they be entitled to, or be eligible, by reason of the contractual relationship hereby created, to participate in any benefits or privileges given or extended by the client to its employees.
9.3. No delay or omission by either party to this Agreement in exercising any right, power or remedy provided by law or under this Agreement shall impair such right, power or remedy, or operate as a waiver thereof. The single or partial exercise of any right, power or remedy provided by law or under this Agreement shall not preclude any other or further exercise thereof or the exercise of any other right, power or remedy. The rights, powers and remedies provided in this Agreement are cumulative and not exclusive of any rights, powers and remedies provided by law.
9.4. Any times, dates or periods specified in this Agreement may be extended or altered by agreement in writing between duly authorised representatives of the parties. Time shall however be of the essence of this Agreement, both as regards times, dates and periods specified in this Agreement and as to any times, dates or periods that may by agreement between the parties be substituted for any of them.
9.5. This Agreement shall be governed by and construed in accordance with the Laws of England and the parties hereby submit to the exclusive jurisdiction of the English Courts.
10. Data Protection Act
10.1. As Data Controller for the purposes of the Act, the client authorises H&L to process all data provided in the course of recovery activities, provided that such processing is in compliance with the Act and the data protection principles.
11. Force Majeure
11.1. H&L shall not be liable for any loss or damage caused by delay in any of its obligations hereunder where the same is occasioned by any cause whatsoever beyond the H&L’s control including, but not limited to any act of God; war; civil disturbance; requisitioning; governmental or parliamentary restrictions; prohibitions or enactments of any kind; import or export regulations; strike lockout or trade disputes (whether involving the sellers employees or those of any other person); difficulties in obtaining labour or materials; breakdown of machinery; fire; or accident. Should any such event occur the H&L may cancel or suspend the contract without incurring any liability for any loss or damage thereby occasioned.
