TERMS AND CONDITIONS OF BUSINESS (the “Terms”)
Nothing herein contained is intended to affect, nor will it affect, a Consumer’s statutory rights under The Supply of Goods and Services Act 1982, The Sale of Goods Act 1979, The Unfair Contract Terms Act 1977 or The Consumer Protection Act 1987 or any amendments thereof or statutory additions thereto.
In these Terms and Conditions:
Company: Shall mean Motormile Management Services Ltd or any associated business or successor thereof.
Client: Shall mean the individual person or corporate entity that instructs the Company to provide the Services either on their own behalf or on behalf of an identified third party subject to these Terms.
Customer: Shall mean the individual or company who owes money to the Client.
Fees: Shall mean the costs agreed by the Company and the Client for the provision of the Services.
Services: Shall mean the recovery of debts owed by the Customer to the Client.
Terms: Shall mean these terms and conditions.
1. Formation of Contract
All works to be undertaken and all goods and services to be supplied by the Company shall be so subject to these Terms and subject to the statement on Consumer Transactions above. No other terms, conditions or warranties are to be implied into the Contract unless expressly accepted in writing by an authorised representative of the Company.
2. Provision of Services
2.1 The Company agrees to act on behalf of the Client in relation to the provision of the Services as requested by the Client, namely to attempt to recover debts owed by the Customer. The Client warrants to the Company that they have full authority to instruct the Company in relation to the Services.
2.2 By instructing the Company to perform the Services the Client accepts responsibility for the accuracy of all information supplied by or on behalf of the Client. The Client confirms the validity of the debt, and that its statement of the outstanding sum is true and accurate.
2.3 In providing the Services the Company will use such lawful means to recover such debts as it deems appropriate.
2.4 If the Client receives any information that has or may have any bearing on the Customer’s ability to pay, the Client shall pass such information on immediately to the Company together with any instruction for further action.
2.5 The Company reserves the right to vary the nature of, or to terminate the provision of the Services or part thereof, and/or to decline any instruction from the Client with immediate effect and for whatever reason upon written notice to the Client. In such circumstances the Client shall remain liable for any disbursements and agents and other charges properly incurred by the Company up until the date of such notice, together with all fees and disbursements incurred after such date for which the liability to pay had been incurred by the Company by the date of the notice and which could not reasonably be avoided.
2.6 Time shall not be of the essence in the undertaking by the Company of any of the instructions received from the Client, but the Company shall endeavour to carry out its work with due speed.
3.1 All instructions from the Client must be in writing and sent via email to the nominated Company email address. Instructions may, at the sole discretion of the Company, be provided by telephone or verbally in person, but such verbal instructions must be confirmed by or on behalf of the Client in writing promptly after such verbal instruction. However, no liability will be accepted by the Company for faults, mistakes or misunderstandings arising from those verbal instructions. The Client is solely responsible for the fullness and accuracy of all instructions at all times.
3.2 No work will be undertaken by the Company on behalf of the Client until all requested information has been supplied by the Client on the appropriate forms supplied by the Company.
3.3 The Company will not, without written instruction from the Client, discount any sums due from a Customer or write off any sums due.
4. Co-operation and Assistance
The Client shall, at their own expense, co-operate with the Company to such extent and provide to the Company such information and assistance as the Company shall reasonably require to enable the Company to perform its obligations in relation to the Services. Such co-operation will include, but is not limited to, the prompt notification of any sums paid to the Client.
5. Warranty of Authority
The Client warrants that any employees, agents, administrators or representatives who contact the Company on behalf of the Client shall have authority to give instructions to the Company on behalf of the Client unless otherwise expressly agreed by the Company in writing.
6. Price and Payment
6.1 The debt amount supplied to the Company by the Client will be the amount which the Company will endeavour to collect on behalf of the Client. The Client must notify the Company immediately if there is any change in the amount due in respect of any Customer passed to the Company for collection.
6.2 The Fees charged by the Company are detailed to the Client in the Letter of Engagement (the “Letter of Engagement”) and the Client warrants that they understand such fees and will abide by them. The Letter of Engagement will be provided by the Company to the Client prior to the commencement of the Services and will set out the Fees agreed between the parties for the provision of the Services up to, but not including, Legal Proceedings.
6.3 Once the Company is instructed by the Client, the Client accepts that any monies paid by the Customer are paid as a direct consequence of the actions of the Company and as such the payment received will be deducted from the instructed balance provided by the Client to the Company and the relevant fees will become due.
6.4 Any Fees due to be paid by the Client to the Company will be paid within 14 days of the presentation of an invoice by the Company to the Client. Any invoices not paid in full within the 14 days will be subject to a late payment administration fee of €75 and interest on the outstanding sum at the rate of 2% per month calculated on a daily basis.
6.5 In respect of any Fees that remain outstanding as referred to in Clause 6.4 above, the Company reserves the right to set-off any funds it holds on behalf of a Client against outstanding invoices owed by the Client to the Company. The Company will provide seven days’ notice to the Client in respect of funds it intends to set-off giving full particulars of the accounts to which the set-off refers and the sums involved.
7. Direct to Client Payments
7.1 The Client will notify the Company of any monies paid by a Customer to the Client within 48 hours of receipt of the same.
7.2 Any payment the Client receives from a Customer, immediately after the Company has been instructed, is deemed to be as a result of the work undertaken by the Company and as such these sums will attract the relevant Fee.
7.3 Should the Client negotiate a discounted settlement figure with the Customer or any third party instructed on the Customers behalf, the Client accepts that Fees will be due to the Company on the original instructed balance and not the settlement amount. The Company, at its sole discretion, may discount its Fee upon written request by the Client.
7.4 The Client will not in any circumstance withhold payment of the Company’s Fees because a Customer has paid the Client direct.
7.5 Should the Company receive evidence that a Customer has paid the Client direct and the Client fails to confirm this to the Company upon request, the Company will charge the Client an administration fee of €100 to cover the cost of the investigation into the payment received.
7.6 If after 45 days from the initial request, the Client fails to confirm to the Company that a Customer has made a payment direct to the Client the Company may, at its own expense, instruct a third party auditor to audit the Client to establish what direct to client payments have been made. The Client will fully co-operate with such an audit by providing access to all relevant information, both in hard and electronic format, as the third party auditor may request.
7.7 Should it prove necessary for the Company to exercise its rights under Clause 7.6 and the third party auditor establishes that payments have been made by a Customer to the Client and the Client has failed to notify the Company, the Client will indemnify the Company in respect of all costs and charges incurred by the instruction of the third party auditor.
8. Legal Proceedings
8.1 Should the Customer fail to pay the debt following initial contact from the Company then legal action (“Legal Proceedings”) may be instituted via the European Order for Payment Procedure (or such other procedure as the Company shall be advised). No Legal Proceedings will be undertaken without approval by or on behalf of the Client.
8.2 In order to commence Legal Proceedings the Client is required to pay in advance an administration fee (the “Administration Fee”). The Administration Fee includes, but is not limited to, the court issue fee and Writ of Fieri Facias fee (or equivalent) and any other disbursement fee required to be paid to the court or a third party to commence Legal Proceedings or enforce the debt in the Legal Proceedings. The Administration Fee is in addition to the Fees specified in the Letter of Engagement and will be notified by the Company to the Client in writing. Should the Client fail to pay any Administration Fee within seven days of the same being requested by the Company in relation to a particular debt, then the Client will be deemed to have terminated its instructions with the Company and the fees referred to in Clause 10 will become due.
8.3 At the commencement of the Legal Proceedings the Company will arrange legal representation from a Solicitor for the Client in respect of the preparation of all court documentation and its submission to the relevant Court. On receipt from the Court the Company will forward a copy of the stamped court papers to the Client for their records. These papers will detail the amount to be claimed via the court and will, wherever possible, be stated in Euros.
8.4 Should the Customer lodge a Statement of Opposition and then file a defence within the requisite time period, the case will be listed for hearing before a Judge. The Solicitor will arrange representation for the hearing and liability for the Payment of the Solicitor’s costs will be borne by the Client initially but then added to the sum to be recovered from the Customer.
9. Transfer of Monies Recovered
9.1 The Company is authorised by and on behalf of the Client to collect payments and issue receipts in relation to the Customer and to deduct and retain recovery fees owed to the Company for the Services performed.
9.2 The Fees and interest are retained by the Company as a first charge on any sum recovered from the Customer in the proportion that the Fees and interest bear to the sum recovered from the Customer.
9.3 Payment of the recovered debt (net of the Company’s Fees and any notified set-off) will be transferred to the Client 14 days following clearance. All monies received by the Company will be held in a dedicated Client Account with Barclays Bank.
9.4 The Company will provide the Client with invoices on the last Friday of the month. The invoices will detail the Customers who have made payments to the Client, the amount paid by the Customer and the amount due to the Company in fees or charges. The net amount due will be transferred to the Company by the Client within 14 days of the date of the invoice.
9.5 The value of the debt as indicated in the stamped Court documents referred to in clause 7.3 will be the amount transferred to the Client by the Company in Euros following collection via the route of High Court Enforcement (or such other method of enforcement as is advised to the Company), less any charges due and outstanding to the Company in relation to the provision of the services as to recovery from that Customer.
10.1 Either party may terminate instructions in respect of any Customer account at any time by providing to the other party a termination notice. Any such notice to the Company must also be sent by email to its designated email address.
10.2 If the Client terminates their instructions after a Customer has promised payment or entered into an agreed repayment plan then the Client will be liable for all fees and charges referred to in the Letter of Engagement. For the avoidance of doubt these include the initial recovery Fees, and Administration Fee and any recoverable interest due from the Customer but now payable by the Client.
10.3 If the Client terminates their instructions with the Company after the commencement of Legal Proceedings against the Customer the Client will be liable to pay all Fees and charges referred to in clause 10.2 above. For the avoidance of doubt the Fees refer to the initial recovery Fees and the Administration Fee and any recoverable interest due from the Customer which has been added to the individual Customer’s account.
10.4 For termination of instructions not falling within clauses 10.2 and 10.3 above, the Client will be liable to pay the reasonable fees and charges incurred by the Company up to the date of termination.
11. Customer Tracing and Profiling
11.1 The Client confirms that the Company is authorised to undertake credit searches in respect of the individual customers referred to the Company by the Client.
11.2 The Company is able to offer a tracing and information service to the Client where an address can be checked and/or verified or an alternative address located. This service will also normally provide the following information –
11.3 The service can only be provided where a previous home or domicile address, telephone number, email address and date of birth is available.
11.4 The service is only available for Customers who are UK residents.
Upon the failure by the Client to pay any fees or charges when due, the Company shall be entitled to withhold and retain all documents, papers and correspondence in its possession relating to the Client pending the payment of all sums due.
13. Statutory Compliance and Data Protection
13.1 The Company and the Client undertake to each other that in respect of their obligations under these Terms they will at all times comply fully with all relevant legislation including without limitation the relevant Data Protection Legislation, both Domestic and European and all re-enactments thereof and amendments thereto.
13.2 Any personal data that is provided by the Client will be held and processed by the Company for the purpose of providing the Services to the Client, and the Company may use this data for its internal administrative purposes, collating statistics on performance of the Services, contacting the Client in relation to other services the Company offers, and any other related matters. As part of this process the Company may disclose this data to its agents and sub-contractors and other members of its group but the Company will not disclose it to any other third parties without the prior approval of the Client.
13.3 Without prejudice to the foregoing, the Client will ensure that the provision to the Company of personal data about Customers or any other persons and the Company’s use of such data in carrying out the Services shall not result in the Company infringing the Data Protection Legislation referred to in Clause 13.1 above. The Client shall indemnify the Company against all claims, demands, actions, costs and other expenses incurred by the Company in connection with any claim by any third party that such provision or use does infringe the Data Protection Legislation.
14. Warranties and Limitation of Liability
14.1 The Company will use its reasonable endeavours to recover debts for the Client through the provision of the Services. The Company does not under any circumstances guarantee recovery of the debts.
14.2 Except as expressly stated in these Terms, all warranties and conditions, whether express or implied by statute, common law or otherwise, are hereby excluded to the maximum extent permitted by law.
14.3 Upon the conclusion of any matter, the Company reserves the right to destroy all records and documents, whether the property of the Client or not after a period of six months from a file being closed. The Company will have no liability for any loss arising out of any such destruction. At any time before the expiry of this six month period the Company will, upon receipt of a written request from the Client, return documents at the Client’s risk and expense.
14.4 The Company will not be liable to the Client for the following loss or damage (including costs or expenses relating to or arising out of such loss or damage) whether arising from contract, tort (including negligence), breach of statutory duty, contribution or otherwise, and whether or not the Company has been made aware of the possibility of such loss or damage:
14.5 In respect of loss or damage not covered by the preceding sub-clause, the aggregate liability of the Company to the Client, whether in contract, tort (including negligence), breach of statutory duty, contribution or otherwise, in relation to any one instruction shall be subject to a limit of two times the amount paid by the Client to the Company in fees and charges in respect of that one instruction at the date the cause of action arose.
15.1 Without prejudice to the other provisions of these Terms each of the parties hereto undertakes with the other that it shall, and it shall procure that its officer’s employees and agents shall, maintain in strictest confidence and not divulge or communicate to any third party any confidential information relating to the other.
15.2 For the purposes of sub-clause 14.1 the expression “confidential information” shall mean (as the context may require):
15.2.1 any information concerning the other party’s trade secrets Clients or business dealings transactions or affairs which may come to the notice of the other party.
15.2.2 any information and/or knowledge relating to the methods or techniques used in the performance of their business dealings.
16. Force Majeure
In the event of the performance of any obligation accepted by the Company being prevented, delayed or in any way interfered with by any direction of government or other competent authority, industrial dispute, strike, breakdown of plant or machinery, accident, fire or by any other cause beyond the Company’s reasonable control the Company may, at its sole option, suspend performance or cancel its obligation under the Contract without damage or consequential loss arising.
Any express or implied waiver by the Company of any failure by the Client to perform the Client’s obligations under this Agreement will not prevent the subsequent enforcement of those obligations. Similarly, any waiver the Company gives will not be taken to be a waiver of any subsequent failure by the Client to perform that or any other obligation.
18. Entire Agreement
These Terms and Conditions constitute the entire understanding between the parties relating to the subject matter of these Terms and, save as may be expressly referred to or referenced herein, supersedes all prior representations, writings, negotiations, understandings, advertising literature or correspondence with respect hereto, except in respect of any fraudulent misrepresentation made by a party. The parties acknowledge that they have not relied on any representations, writings, negotiations or understandings, whether express or implied, (other than as set out in these Terms) in entering into these Terms. Neither party limits or excludes its liability in respect of fraudulent misrepresentation.
These Terms are severable in that if any provision of these Terms is determined to be illegal or unenforceable by any Court of competent jurisdiction it shall be deleted to that extent and no further without affecting the remaining provision of these Terms..
The headings used for these Terms are for convenience only and shall not affect the construction of these Terms and Conditions.
21. Company’s Right of Change or Amendment
The Company reserves the right to make changes and/or amendments to these Terms without prior notice. Customers must check the Company’s website to ensure they are aware of the latest version of these Terms.
These Terms shall be governed, construed and enforced in accordance with English Law and shall be subject to the exclusive jurisdiction of the English courts to which the parties hereby irrevocably submit.
By signing below you confirm that you have read and understood the above Terms and Conditions and accept that you are duly bound by the same.
V1.9 December 2015