Terms & Conditions of Business Debt Collection Services
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Terms & Conditions of Sterling Outsourcing Sp. z o.o.
(trading as Sterling Debt Recovery) Debt Collection Service (DC01)
1. DEFINITIONS
In this Contract the following word or words shall have the following meanings:
1.1. ‘Agent’ means a third party appointed by Sterling to assist with the collection of a debt on behalf of the Client, such as a Solicitor, Process
Server, Tracing Agent, Enquiry Agent, or some other individual, company or organisation that Sterling considers appropriate to employ or instruct on behalf of the Client;
1.2. ‘Client’ means the individual, company or organisation that instructs Sterling on the terms set out in this Contract or as notified by Sterling to the Client from time to time.;
1.3. ‘Commission’ means Sterling’s charges for its Debt Collection Service, expressed as a percentage of the amount of Debt recovered by Sterling, i.e. the percentage set out in clause 6 or Schedule 1 on the amount of Debt paid by the Debtor or third party on its behalf after the Effective Date;
1.4. ‘Debt’ means the full gross amount claimed by the Client from a third party, as set out in an Instruction to Sterling or as determined by Sterling following an analysis of the relevant documents, including without limitation, any tax, contractual or statutory interest, late fees, legal fees and debt recovery compensation;
1.5. ‘Debt Collection Service’ means the service that Sterling agrees to provide to the Client;
1.6. ‘Debtor’ means a client of the Client from whom the Client is claiming the Debt;
1.7. ‘Effective Date’ shall mean the date an Instruction is submitted to Sterling by any means, including without limitation the date an Instruction is submitted to Sterling by e-mail;
1.8. ‘Instruction’ means any express or implied request to recover a Debt submitted to Sterling in writing by any means, including copying Sterling into correspondence with a Debtor, whether or not it correctly identifies
the Debtor. For the avoidance of doubt, the client’s failure to correctly identify the creditor and/or Debtor shall not render an Instruction void;
1.9. ‘Sterling’ means Sterling Outsourcing Sp. z o.o., a company based in Krakow, Poland and registered in the Polish commercial register under
number KRS 0000288699;
2. OBLIGATIONS OF STERLING
2.1. Sterling agrees to deliver the Debt Collection Service in accordance with these Terms and any schedules, appendices and addendums hereto.
2.2. Following receipt of an Instruction to perform a Debt Collection Service, Sterling shall use its best endeavours to collect the Debt.
2.3. Sterling and/or its Agents will carry out the work required to recover the Debt(s) during the course of normal working hours and within a
reasonable time.
2.4. Sterling undertakes to exercise discretion and reasonable care and skill whilst collecting a Debt.
2.5. Sterling accepts no responsibility for failure to collect a Debt.
2.6. The Debt Collection Service may run in conjunction with the Sterling Credit Control Service. Sterling will seek written instruction (fax or email) from the Client before initiating the Debt Collection Service for a Debtor.
2.7. Where a Debt is paid directly to Sterling, Sterling shall transfer funds to the Client within 30 days of the Debt clearing in Sterling’s account, less any fees payable to Sterling.
2.8. Where Sterling reach an arrangement for payment of a Debt to be made according to a payment plan or schedule, Sterling shall have the right to retain funds for 3 months or until the full Debt is paid, whichever is sooner.
3. THE CLIENT’S OBLIGATIONS aND REPRESENTATIONS
3.1. The Client agrees to respond to Sterling’s reasonable requests for instructions, information and documents to enable Sterling to fulfil its
obligations under this contract.
3.2. The Client shall permit Sterling or any other person authorised by Sterling to have reasonable access to details of their Debtor records and provide such reasonable assistance as requested by Sterling to enable them to carry out their obligations under this Contract.
3.3. The signatory or person or organisation that submits a request for services declare that they have the proper authority to do so and agree to be liable for any fee or other as a result of that submission.
3.4. The Client represents that:
3.4.1. each Debt that it Instructs Sterling to collect remains fully due and payable by the Debtor under a valid contract at the time of the Instruction; and
3.4.2. the Debtor has no right to set-off the Debt against any amount owed to the Client; and either
3.4.3. it has not assigned the Debt to any third-party, including an invoice financing, factoring or similar organisation; or
3.4.4. if it has assigned the Debt to a third party, the Client represents that it has obtained the necessary consent of such a third party creditor to Instruct Sterling to recover the Debt and in the event of a successful collection by Sterling, the Client shall be liable for Sterling’s Commission in accordance with the terms hereof as if the Debt had still belonged to the Client and the Client shall be responsible for remitting the remaining amount of the Debt to and settling accounts with the third party creditor. The Client shall provide written evidence of the assignment and consent at Sterling’s first written request.
4. INSTRUCTIONS TO RECOVER DEBTS
4.1. The Client shall submit Instructions to recover Debts by e-mail or other written form, providing sufficient details of the Debtor, the amount due and documentary evidence of the Debt (e.g. invoice, contract, purchase order, correspondence). For the avoidance of doubt, copying Sterling into correspondence with the Client’s debtors shall be deemed an Instruction.
4.2. The Effective Date of the Instruction to recover a Debt shall be the date of the first e-mail or other correspondence to Sterling concerning the Debt, providing sufficient detail for the Debtor to be identified.
4.3. Following the Effective Date of an Instruction, any amount of the Debt paid by the Debtor or 3rd party on its behalf whether payment is remitted to Sterling, directly to the Client or to a third party directly in any form, including without limitation, by cheque, bank transfer or set-off or any waiver, termination, cancellation or denial of the Debt by the Client, shall give rise to an obligation to pay the agreed rate of Commission for Sterling’s services, regardless of the number or value of services actually
rendered at that time.
5. PAYMENTS
5.1. Sterling shall charge the Commission for the Debt Collection Service as detailed in clause 6 or Schedule 1 of this agreement, unless otherwise agreed in writing.
5.2. The Client shall pay Sterling’s Commission directly to Sterling’s nominated bank account by bank transfer.
5.3. Sterling may request payment on account of disbursements to fund the services of an Agent at its discretion, with any remaining balance being due at an agreed later date. The Client will be provided with a fee sheet by Sterling detailing Solicitor’s charges prior to the commencement of any legal action. No legal action will be taken without the Clients prior agreement.
5.4. If the parties agree that legal action should be commenced to recover the Debt, the Client authorises Sterling to instruct a solicitor on the Client’s behalf and to disclose any documents and information Sterling holds regarding the Debt. The instruction of a solicitor in respect of the Debt shall be without prejudice to Sterling’s right to Commission. Notwithstanding the above, any solicitor instructed by Sterling on the Client’s behalf will act for the Client directly under the solicitor’s own terms of business. Unless the Client is advised otherwise, Sterling shall instruct Douglas Hogg, a sole practitioner with a valid SRA practising certificate. His fees and terms of business are available on request.
5.5. All sums due under this Contract shall be paid in full without set-off.
5.6. After the Effective Date, the Client will be liable for any costs incurred by Sterling on its behalf. Sterling will not incur costs without prior written permission from the Client.
5.7. All payments due to Sterling in respect of its Commission and disbursements are payable within 14 days of invoice date, unless
otherwise agreed in writing with Sterling.
5.8. Sterling reserves the right to amend or vary these Terms and Conditions, and in particular the Commission rates from time to time but any such amendments/variations shall only have effect upon notification to the client in writing. These Terms and Conditions constitute the entire agreement between the Client and Sterling and supersede any prior written or oral agreement unless specifically agreed in writing.
5.9. If a Client does not pay Sterling’s invoices within 14 days as set out at section 5.7, Sterling reserves the right to charge interest at 8.5% per annum and charge the Client the costs of debt recovery amounting to 12% of the amount due, which the Client hereby acknowledges to be reasonable.
5.10. If the Client has a query with any invoice raised by Sterling, notification of such query must be detailed in writing to Sterling within 30 days from the date of the invoice. If no query is received within that time then the invoice will be deemed payable.
6. CHARGES
6.1. Sterling’s rates of Commission are as follows unless special rates have been agreed upon in Schedule 1:
6.1.1. Sterling’s basic rate of Commission, where the Debtor is based in the United Kingdom and the Debt is governed by English law, is 12% of the amount of Debt paid by the Debtor or 3rd party on its behalf;
6.1.2. Where the Debtor is located outside the UK or the Debt is governed by a law other than the law of England and Wales, Sterling’s rate of Commission will be 20% of the amount of Debt paid by the Debtor or 3rd party on its behalf;
6.1.3. Where the Debt is more than 24 months old at the time of the Instruction (based on the original invoice date or order date, whichever is earlier), Sterling’s rate of Commission will be 20% of the amount of Debt paid by the Debtor or 3rd party on its behalf;
6.1.4. Where the Debt is a 2nd referral (i.e. the debt has already been referred to a debt collection agency or solicitor and returned uncollected), Sterling’s rate of Commission will be 25% of the amount of Debt paid by the Debtor or 3rd Party on its behalf;
6.1.5. Where the Client has submitted a claim itself and wishes Sterling to take over the case, Sterling’s rate of Commission will be 25% of the amount of Debt paid by the Debtor or 3rd party on its behalf.
6.2. Sterling reserves the right to charge a minimum fee of £50 for each Debt where Sterling is successful in recovering the Debt value or a lower settlement figure is agreed with the Client.
6.3. Where the Client agrees to accept goods or services in lieu of the Debt, it will be assumed that the goods or services are equal in value to the Debt for the purpose of calculating Commission, unless otherwise agreed in writing between the Client and Sterling.
6.4. If the parties have agreed a special rate of Commission in Schedule 1:
6.4.1. this rate shall only apply if the Client has observed all other terms hereof, including without limitation, the obligation to pay the agreed amount of Commission to Sterling within 30 days. For the avoidance of doubt, in the event that any term hereof is breached, the Client shall pay Sterling the rates of Commission set out in clause 6.1 hereof;
6.4.2. this rate can be varied by agreement between the parties if the actual or recoverable amount of the Debt differs significantly, i.e. by more than 25% of the amount stated in the Instruction.
6.5. The Client shall be responsible for and shall indemnify Sterling against all costs and fees incurred by Sterling on its behalf from the time it receives the Client’s instructions until such time as it is either notified by the Client that no further action is required, the Debt is paid, the debt becomes irrecoverable or the instructions are terminated. Any such notification from the Client must be made in writing. Sterling will not incur costs and fees on behalf of the Client without prior written authorisation.
6.6. If a Debt is paid directly to the Client in whole or in part, or if the Client accepts goods or services in lieu of the Debt, or if it is found that the Debt was already paid prior to the Client instructing Sterling then the Client:
6.6.1. shall inform Sterling immediately and confirm the position in writing by post or email;
6.6.2. shall be responsible for all costs and fees incurred by Sterling until it receives such notification;
6.6.3. shall be responsible in any event for Sterling’s fees calculated in accordance with section 6.1.
6.7. All Sterling’s Commission, charges, and other costs and expenses incurred on the Client’s behalf attract VAT which shall be payable at the prevailing rate in accordance with legislation from time to time in force.
6.8. The Client hereby authorises Sterling to request and receive payments in respect of any of the Client’s debts directly to Sterling’s bank account.
7. TERMINATION OF THE CONTRACT
7.1. The Contract cannot be terminated by the Client without the written agreement of Sterling and if the Contract is terminated, by agreement, the Client will be liable to pay Sterling a sum equivalent to the Commission that Sterling would have received upon recovery of the Debt.
7.2. Sterling reserves the right to suspend the provision of supply of services until further notice without liability to the Client on notifying the Client either orally or in writing in the event that: The Client is in breach of any material term of this Contract; or Sterling is obliged to comply with an Order of any relevant authority.
7.3. The Client shall reimburse Sterling for all reasonable costs and expenses incurred by the implementation of such suspension and/or the
recommencement of the provision of the service.
8. LIABILITY
8.1. Sterling shall not be liable to the Client in contract, tort or otherwise, including liability for negligence, for any loss of revenue, business,
anticipated savings or profit or any indirect or consequential loss however arising.
8.2. Sterling shall have no liability to the Client for any loss, delay or costs relating to or arising out of incomplete or inaccurate instructions from the Client.
8.3. Neither party shall be liable to the other for any loss or damage, which may be suffered by the other party due to any cause beyond the control of the parties.
9. LIEN
9.1. In the event that the Client fails to pay any amount due to Sterling, Sterling shall be entitled to exercise a lien over all documents, papers, and correspondence it holds in connection with the Client’s business until payment by the Client of all sums due.
10. DATA PROTECTION
In order to comply with its data protection obligations Sterling shall:
10.1. comply with all applicable data protection laws in the processing of personal data;
10.2. only accept and process personal data for the purpose of debt collection activities during the term of this agreement and only for the purposes of identifying and contacting debtors and establishing the basis of the debt and the debtor’s assets;
10.3. not process any personal data other than on the relevant documented instructions of the Client who shall at all times be the data controller who may at any time request the secure deletion of personal data provided;
10.4. obtain a commitment of confidentiality from anybody it allows to process personal data;
10.5. obtain the Client’s prior, written consent to use any sub-processor of data;
10.6. take all security measures necessary including but not limited to technical and organizational measures to ensure the security of data processing;
10.7. take appropriate technical and organisational measures to help the Client respond to requests from individuals to exercise their data
protection rights insofar as they relate to Sterling’s data processing;
10.8. assist the Client to keep data secure, notify the relevant authorities and data subjects of any data breaches, carry out impact assessments and consult relevant authorities where necessary;
10.9. assist the Client by providing all necessary information for audits and inspections to demonstrate compliance with data protection laws;
10.10. securely delete all personal data when the contract ends, unless it is required to be stored by law.
11. MISCELLANEOUS
11.1. The Client shall not assign any rights or obligations under this Agreement without the prior written consent of Sterling.
11.2. The Client and Sterling acknowledge that neither party has relied upon any oral representations made to it by the other, and has made its own investigations into all matters relevant to the contract. Oral representations are only effective if confirmed in writing.
11.3. Any notice, invoice or other document which may be given by either party under this Agreement shall be deemed served if left at or sent by post or fax (confirmed by post) to an address notified by the other party in writing as an address to which notices or other documents may be sent.
11.4. Sterling has only limited storage facilities, accordingly upon conclusion of any matter Sterling reserves the right to destroy all records and documents, whether the property of the Client or not after a period of six months from the file being closed. Sterling will have no liability for any loss arising out of any such destruction. At any time before the expiry of the six month period Sterling will, at the receipt of a request from the Client, obtain a file from their archives for an administration fee of £20.00 plus vat.
11.5. This Agreement shall be governed by English Law and subject to the exclusive jurisdiction of the courts of England and Wales.
11.6. Sterling’s address for service of any notice shall be 483 Green Lanes, London, N13 4BS, its Registered Office address or any other address that Sterling shall notify to the Client.
11.7. Sterling may assist the client to draft legal documents from time to time. However, neither Sterling nor its employees act nor do they hold themselves out as acting in the capacity of a solicitor or firm of solicitors.
12. AUTHORITY TO RECEIVE PAYMENT
The Client hereby authorises Sterling Outsourcing Sp zoo (trading as Sterling
Debt Recovery) to receive payment(s) on behalf of the below-mentioned
entity and acknowledge that debts due to it have been extinguished.
