AGREEMENT
This Agreement is made on the date on which the Application Form submitted by the Client is accepted by Intrum Justitia.
1.1. Intrum Justitia Ltd (“IJ”) a company incorporated in England under registration number 01918920 whose registered office is at 5th Floor, The Plaza, 100 Old Hall Street, Liverpool, L3 9QJ and the Client.
2. BACKGROUND
2.1. IJ agrees to provide the Client with debt collection services (“Services”) in relation to those debts which are put in the hands of IJ for collection by the Client upon and subject to the terms and conditions set out below.
3. DEFINITIONS
3.1. In this agreement the following words have the following meanings:
3.1.1. “Agreement” means this agreement.
3.1.2. “Appointed Solicitor” means the solicitor(s) instructed by IJ from time to time pursuant to clause 5.
3.1.3. “Associated Company” means any company which is a subsidiary or a holding company of or in the same group as a
party to this Agreement.
3.1.4. “Client” means the company whose name, registered company number, registered company address and incorporation details are specified on the Application Form.
3.1.5. “Collection Charge” means in respect of each Debt placed with IJ for collection the charge payable to IJ at the rates set out in the IJ Tariff as varied from time to time in accordance with clause 7.8.
3.1.6. Debtor” means a person or corporate body howsoever formed owing a Debt to the Client.
3.1.7. “Debt” means any debt referred or to be referred by the Client to IJ for collection under this Agreement.
3.2. Words which denote the singular shall include the plural and vice versa. Reference to any gender shall include any
other gender.
3.3. References to a clause are to a clause in this Agreement.
3.4. References to any statute are to such statute as amended or replaced from time to time.
3.5. The ejusdem generis rule shall not apply to the interpretation of this Agreement.
4. SERVICES
4.1. The Client hereby appoints IJ as its exclusive agent to recover Debts and IJ agrees to accept such appointment.
The Client shall not appoint any other person to recover the Debts placed with IJ, nor seek to recover the Debts itself.
4.2. IJ does not guarantee that it will recover all or part of the Debts but agrees to use its reasonable endeavours to
recover the Debts.
4.3. Payments received by IJ on behalf of the Client in respect of the recovery of Debts shall be remitted to the Client net
within 10 working days of receipt.
4.4. Where payments are to be submitted net, IJ will, subject to its right of set-off in clause 7.7, send to the Client all
amounts recovered in respect of the Debts after the deduction of the Collection Charges and any other sums (together with any applicable VAT) due to IJ in respect of those Debts.
4.5. Debts paid direct to the Client from whatever source, shall be subject to the Collection Charges for the Services
performed by IJ in accordance with clause 6.1.2. Any goods or services accepted by the Client in lieu of payment for a
Debt shall be subject to the Collection Charges calculated on the amount by which the Debtor’s account is credited for
such goods or services.
4.6. The Services are available only in relation to Debts owing to the Client for which the Client has all necessary
supporting documents to prove the existence of such Debts.
4.7. IJ and the Appointed Solicitor and/or agents appointed on behalf of the Client are authorised by and on behalf of the
Client to collect payments, issue receipts in relation thereto, and subject to clause 4.4, deduct there-from and retain and
account for any charges owing and due to IJ and such Appointed Solicitor and/or agents.
4.8. If the Client desires to withdraw a Debt placed with IJ for collection before the collection process is completed, then
the Client will forthwith notify IJ in writing of such desire. If the Client withdraws a Debt placed with IJ for collection
before the collection process is completed, the Client shall pay the Collection Charge that would have been payable by
the Client had the outstanding balance been collected in full by IJ, including but not limited to Court fees and solicitors’ costs and fees and disbursements, together in each case with any applicable VAT.
4.9. All sums payable by the Client to IJ under this Agreement shall be paid without deduction, withholding or set off for any reason whatsoever.
5. LITIGATION ACTIVITY
5.1. In the event that the Services include litigation collections the Client hereby consents to IJ selecting and instructing
solicitors (“the Appointed Solicitor”) to recover Debts on the Client’s behalf subject to the provisions of this clause 5.
IJ shall have absolute discretion to instruct solicitors of its own choice and to change such solicitors from time to time. IJ will NOT instruct the Appointed Solicitor to begin litigation collections without the express written consent of the Client.
5.2. Nothing contained in this Agreement will affect the professional advice of any Appointed Solicitor whose advice will be independent at all times. IJ shall not be liable for the negligence or default of the Appointed Solicitor.
5.3. Without prejudice to clauses 4.5, 4.8, 7.3 and 11.3, IJ will invoice the Client in advance for all costs, fees and disbursements of the Appointed Solicitor. The Client will also be responsible and pay (together with any applicable VAT) for all costs, fees and disbursements of the Appointed Solicitor as a result of direct instructions given to the Appointed Solicitor other than by IJ.
5.4. The Client hereby agrees to lend its name to any proceedings which IJ instructs the Appointed Solicitor to bring with the Client’s written consent in relation to any of the Debts, and the Client will give all such further assistance as may be necessary to enable IJ to pursue such proceedings and enforce any judgment obtained.
6. OBLIGATIONS OF THE CLIENT
6.1. The Client shall:
6.1.1. provide to IJ all necessary documents to prove the existence of the Debts to be collected;
6.1.2. notify IJ within 24 hours of any receipt of any payment or part payment of a Debt or of any agreement on the part of
the Client with a Debtor relating to a Debt;
6.1.3. serve all notices, warnings and demands required by law to be served upon a Debtor and notify IJ of any instance
where the Client has not done so; and
6.1.4. respond to requests and enquiries from IJ within 7 days of receipt of the same.
7. CHARGES AND FEES
7.1. The Client will pay to IJ an annual membership fee commencing on the date of this Agreement and on each
subsequent annual anniversary of this Agreement, at the rate set out in the IJ Tariff as varied from time to time in accordance with clause 7.8. The annual membership fee will be invoiced by IJ quarterly in advance and the Client will pay the invoice within 30 days of the date of IJ’s invoice.
7.2. In consideration of the Services provided by IJ the Client will pay IJ the Collection Charges as specified or referred to
in the IJ Tariff for the relevant Debt. Collection Charges are payable on a weekly basis and IJ will raise an invoice weekly in respect of its Collection Charges arising in the previous week and such invoices shall be paid within 30 days of the date of IJ’s invoice.
7.3. The Collection Charges for litigation collections will be payable on a monthly basis in respect of charges arising in the previous month unless these Collection Charges amount to less than £100.00 (excluding VAT) in which case IJ may defer its invoice until the aggregate outstanding Collection Charges for litigation collections amount to at least £100.00. Where the Services include litigation collections IJ shall invoice the Client in advance for any solicitor’s costs, fees and disbursements together with any applicable VAT on such solicitors’ costs, fees and disbursements.
Such solicitors’ costs, fees and disbursements and VAT thereon, are in addition to the Collection Charges.
7.4. Any Collection Charges and other sums due to IJ under this Agreement are exclusive of VAT which if applicable will be
charged in addition at the rate prescribed by law from time to time.
7.5. IJ will be entitled to charge the Client interest at the annual rate of 4% above HSBC’s base rate from time to time
calculated on a daily basis on overdue accounts from the date of invoice until payment, after as well as before any judgment.
7.6. IJ shall not be obliged to provide the Services in respect of any Debt whilst any payment due (or any part thereof)
remains outstanding from the Client for that or any other Debt.
7.7. The Client agrees that IJ may deduct or set-off from monies received by IJ as payment of the Debts any sums owed to IJ by the Client, whether or not such sums are owed under this Agreement or under any other agreement between IJ and the Client.
7.8. IJ shall be entitled by notice in writing to the Client to amend the Collection Charges set out or referred to in the IJ
Tariff from time to time in which case, the Client shall have the option, by notice in writing to IJ, of terminating the Agreement no later than the date on which the Collection Charges are due to be amended, subject to payment of all sums outstanding to IJ.
7.9. Without prejudice to any other of IJ’s rights, failure by the Client to make any payment due on its due date for payment will entitle IJ at its sole discretion summarily, by notice in writing to the Client, to terminate this Agreement, or any other agreement with the Client, either in whole or in part, and/or to require all outstanding Collection Charges to be due and payable in each case without incurring any liability to the Client for any loss caused by such termination.
7.10. Any work undertaken by IJ other than the provision of the Services shall be outside the scope of this Agreement and
may be provided by IJ on and subject to terms to be agreed between IJ and the Client.
8. STATUTORY COMPLIANCE
8.1. Each party agrees that it will comply at all times with any statutory and regulatory provisions which are applicable to
debt collection which it is required by law to comply with.
8.2. The parties warrant that they are and will continue to be (if required) registered for the purposes of the Data Protection Act 1998 and any statutory modification thereto or replacement thereof, and comply with the relevant provisions of the said Act in relation to the holding, storing, accessing and disclosure of personal data.8.3. The Client hereby agrees:
8.3.1. that any information provided to IJ by the Client in relation to the Services may be used or disclosed to a third party for the purposes of credit reference checks and debt tracing and recovery and other similar activities
8.3.2. that it shall obtain the informed consent of the subjects of any information provided to IJ to the use of such information for the purposes described in clause 8.3.1 and to the disclosure of such information to IJ and the appointed on behalf of the Client for such purposes, whether by the provision of a statement to this effect in its trading terms and conditions or otherwise.
9. LIABILITY
9.1. The following provisions set out IJ’s entire liability (including but not limited to any liability for the acts and omissions of its employees, officers, agents or subcontractors in relation to the Services) to the Client in respect of any breach of its contractual obligations or any misrepresentation or tortious act or omission, including but not limited to negligence, arising under or in connection with this Agreement.
9.2. Any such breach, misrepresentation act or omission referred to in clause 9.1 above shall for the purposes of this
clause 9 be known as an “Event of Default”.
9.3. IJ shall have no liability to the Client in relation to damage to the Client’s software or data whether by introduction of a computer virus or otherwise resulting from an Event of Default by IJ or its employees, officers, agents or subcontractors.
9.4. IJ shall have no liability to the Client in respect of any Event of Default for loss of profits, loss of goodwill or any type
of special, indirect or consequential loss (including but not limited to loss or damage suffered by the Client as a result
of an action brought by a third party) even if such loss was reasonably foreseeable or IJ had been advised of the
possibility of the Client incurring the same.
9.5. Without prejudice to the provisions of clauses 9.3, 9.4, 9.6 and 9.7, IJ’s liability in respect of any Event of Default or
any series of connected Events of Default shall not exceed the amount paid by the Client for the Services provided in
relation to the Debts in respect of which the Event of Default arises.
9.6. IJ shall have no liability to the Client in respect of any Event of Default unless the Client shall have served notice of the same upon IJ within 30 days of the date it became aware of the circumstances giving rise to the Event of Default or the
date when it ought reasonably to have become so aware.
9.7. Notwithstanding any of the provisions of this Agreement, IJ’s liability to the Client shall not be excluded or limited in
respect of fraud or fraudulent misrepresentation by IJ, or death or personal injury caused by IJ’s negligence (or the
negligence of its employees or officers).
10. INDEMNITY
10.1. The Client shall indemnify IJ and/or its employees, officers, agents and sub-contractors on a full and unqualified basis in respect of any loss or damage whatsoever (including but not limited to costs and any necessary payments made in
order to settle or compromise any claim and costs and disbursements of Appointed Solicitors) which it or they may
suffer or incur directly from any breach of this Agreement (including, without limitation, clause 8.3) or negligence by
the Client or by the Client’s employees, officers or agents or by any other party acting through or with the Client.
11. TERMINATION
11.1. This Agreement shall (unless terminated earlier in accordance with clause 11.2) remain in force for a period of 12
months from commencement of the Agreement. Thereafter this Agreement shall continue unless and until either party
provides the other party with not less than three months prior written notice of termination.
11.2. Either party may terminate this Agreement forthwith by notice in writing if the other:-
11.2.1. is in material breach of this Agreement and shall have failed to remedy the breach within 30 days of the receipt of a
request in writing from the party not in breach to remedy the breach; or
11.2.2. has a bankruptcy order made against it or has entered into a composition whether formal or informal with its creditors or has become the subject of a voluntary arrangement under the Insolvency Act 1986 or any statutory modification or replacement thereof or is unable to pay its debts within the meaning set out in the Insolvency Act 1986 or any statutory modification or replacement thereof or has had a receiver manager administrator or administrative receiver appointed of its undertaking assets or income or any part thereof or has passed a resolution for winding up or an order for winding up has been made against it.
11.3. The termination of this Agreement howsoever arising will be without prejudice to the rights and duties of either party accrued prior to termination. Without prejudice to the generality of the foregoing:-
11.3.1. the Client shall forthwith upon termination pay to IJ any monies then owing to IJ under this Agreement, including but not limited to any costs and expenses incurred by IJ and not already paid for by the Client, in providing Services prior
to the date of termination;
11.3.2. in the event that the Client terminates this agreement under clause 11.1 the Client shall upon termination (in addition to its obligation under clause 11.3.1) have the obligation to pay to IJ the Collection Charge that would have been payable by the Client had the outstanding balance been collected in full by IJ on all debts held by IJ at the termination date.
11.3.3. IJ will, after the deduction of its Collection Charge and any other sums due as at the date of termination, remit to the Client all sums held on the Client's behalf as at the date of termination.
12. CONFIDENTIALITY
12.1. Neither party will at any time during the term or after the termination of this Agreement disclose any confidential
information acquired or received as a result of entering into or performing this Agreement except that IJ may disclose
confidential information to its employees, officers, agents or sub-contractors to the extent necessary in order to provide the Services and in accordance with clause 8.3.
12.2. Clause 12.1 shall not apply to:-
12.2.1. information which is in the public domain otherwise than as a result of a breach of clause 12.1;
12.2.2. information which is required to be disclosed by law; or
12.2.3. information which is required to be disclosed in accordance with any legal requirement in order to pursue the recovery of the Debts.
12.3. IJ hereby notifies the Client that for its protection, telephone calls with IJ and emails sent to IJ may be recorded or monitored to which the Client hereby consents.
13. FORCE MAJEURE
13.1. IJ shall not be liable to the Client for any loss or damage which may be suffered by the Client as a direct or indirect result of IJ being delayed, prevented or hindered in the performance of its obligations under this Agreement by reason of any circumstances beyond its reasonable control.
14. ASSIGNMENT AND SUB-CONTRACTING
14.1. IJ is entitled to assign the benefit and burden of this Agreement at any time to an Associated Company of IJ or any
other third party and IJ or its assignees shall be entitled to sub-contract their obligations hereunder.
15. WAIVER
15.1. Any waiver of a breach of any of the terms of this Agreement or of any default hereunder shall not be deemed a waiver of any subsequent breach or default and shall in no way affect the other terms of this Agreement.
16. VARIATIONS AND ADDENDUMS
16.1. No variations to this Agreement shall be binding upon IJ unless in writing and signed by a duly authorised officer of IJ.
16.2. Variations to the type of debts to be referred by the Client to IJ or to the Services to be provided by IJ to the Client
shall be recorded by the completion of an addendum, which once signed and completed by IJ and the Client shall form part of this Agreement.
17. NOTICES
17.1. All notices given under this Agreement shall be in writing and unless otherwise specified, any notice sent hereunder
shall be deemed to have been duly given if sent by prepaid first class post addressed to the party concerned to its registered office or to such other address for service as such party shall have notified to the other party as its address for service and marked for the attention of the Managing Director. Service will be deemed to have taken place 3 days after the date of posting.
18. LAW
18.1. The formation, construction, performance, validity and all aspects whatsoever of this Agreement shall be governed by
English Law.
18.2. The courts of England and Wales will have exclusive jurisdiction to settle any dispute arising or in connection with this Agreement and the parties agree to submit to that Jurisdiction.
19. ARBITRATION
19.1. All disputes or differences which arise out of this Agreement shall be referred to a single arbitrator to be appointed in accordance with and subject to the Arbitration Act 1996. Either party may serve notice upon the other party to agree upon an arbitrator and in default of such agreement within 21 days of the date of such notice either party may request that the President of the Chartered Institute of Arbitrators appoints a single arbitrator.
20. ENTIRE AGREEMENT
20.1. This Agreement sets out the entire agreement between the parties and supersedes and replaces all prior communications, representations, warranties, stipulations, undertakings and agreements whether oral or written between the parties, save that nothing in this clause 20 shall exclude or restrict IJ’s liability for fraudulent misrepresentation.