Terms and Conditions - One-Off Debt Gold
AGREEMENT
This Agreement is made on the date on which the Application Form submitted by the Client is accepted by Advantis Credit LTD, between:
1. PARTIES
1.1. Advantis Credit LTD (“ADVANTIS CREDIT LTD”) a company incorporated in England under registration number 5223252 whose registered office is at Advantis Credit Ltd, Minton Hollins Building, Shelton Old Road, Stoke-on-Trent, ST4 7RY and the Client (Client as defined in clause 3.1.6)
2. BACKGROUND
2.1. ADVANTIS CREDIT LTD agrees to provide the Client with debt collection services (“Services”) in relation to the Debt (as defined below) which is placed with ADVANTIS CREDIT LTD for collection by the Client upon and subject to the terms and conditions set out below.
2.2. This Agreement relates to the collection of the Debt only. If the Client wishes ADVANTIS CREDIT LTD to collect any other debts on its behalf, the Client must submit a separate Application Form (as defined below) on the Website (as defined below) and pay a separate Administration Fee (as defined below).
3. DEFINITIONS
3.1. In this agreement the following words have the following meanings:
3.1.1. “Administration Fee” means the administration fee set out in the Tariff.
3.1.2. “Agreement” means this agreement.
3.1.3. “Application Form” means the application form requesting ADVANTIS CREDIT LTD to perform the Services as such form is set out on the Website.
3.1.4. “Appointed Solicitor” means the solicitor(s) instructed by ADVANTIS CREDIT LTD from time to time pursuant to clause 5.
3.1.5. “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.
3.1.6. “Client” means the company whose name, registered company number, registered company address and incorporation details are specified on the Application Form.
3.1.7. “Collection Charge” means in respect of the Debt placed with ADVANTIS CREDIT LTD for collection the charge payable to ADVANTIS CREDIT LTD in accordance with the terms set out in clause 7 and at the rates set out in the Tariff
3.1.8. Debtor” means a person or corporate body howsoever formed owing the Debt to the Client.
3.1.9. “Debt” means the debt referred or to be referred by the Client to ADVANTIS CREDIT LTD for collection under this Agreement.
3.1.10 “Tariff” means the tariff as specified on the Website at the date on which a Debt is placed with ADVANTIS CREDIT LTD for collection by the Client
3.1.11. “Website” means www.advantisonline.co.uk
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 ADVANTIS CREDIT LTD as its exclusive agent to recover the Debt and ADVANTIS CREDIT LTD agrees to accept such appointment. The Client shall not appoint any other person to recover the Debt placed with ADVANTIS CREDIT LTD, nor seek to recover the Debt itself.
4.2. ADVANTIS CREDIT LTD does not guarantee that it will recover all or part of the Debt but agrees to use its reasonable endeavors’ to recover the Debt.
4.3 ADVANTIS CREDIT LTD warrants that it has sufficient experience, knowledge and resources to conduct the Services, and undertakes to conduct the Services to the best of its ability and in accordance with all applicable legislation and codes of conduct or good practice or similar requirements.
4.4 The warranty provided by ADVANTIS CREDIT LTD in clause 4.3 is in lieu of all other warranties and all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
4.5. Any payment received by ADVANTIS CREDIT LTD on behalf of the Client in respect of the recovery of the Debt shall be remitted to the Client net of ADVANTIS CREDIT LTD’s Collection Charges, costs and disbursements within 30 working days of receipt.
4.6. Where any payment is to be submitted net, ADVANTIS CREDIT LTD will, subject to its right of set-off in clause 7.7, send to the Client the amount recovered in respect of the Debt after the deduction of the Collection Charges (Commissions) and any other sums (together with any applicable VAT) due to ADVANTIS CREDIT LTD in respect of that Debt.
4.7. Where the Debt is paid direct to the Client from whatever source, the Client shall be subject to the Collection Charges for the Services performed by ADVANTIS CREDIT LTD in accordance with clause 6.1.2. Any goods or services accepted by the Client in lieu of payment for the 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.
4.8. The Services are available only in relation to a Debt owing to the Client for which the Client has all necessary supporting documents to prove the existence of such Debt.
4.9. ADVANTIS CREDIT LTD and its Associated Companies 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 4.6, deduct there-from and retain and account for any charges owing and due to ADVANTIS CREDIT LTD and its Associated Companies and such Appointed Solicitor and/or agents.
4.10. If the Client wishes to withdraw the Debt placed with ADVANTIS CREDIT LTD for collection before the collection process is completed, then the Client will forthwith notify ADVANTIS CREDIT LTD in writing. If the Client withdraws the Debt placed with ADVANTIS CREDIT LTD 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 ADVANTIS CREDIT LTD, including but not limited to Court fees and solicitors’ costs and fees and disbursements, together in each case with any applicable VAT.
4.11. All sums payable by the Client to ADVANTIS CREDIT LTD 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 ADVANTIS CREDIT LTD selecting and instructing solicitors (“the Appointed Solicitor”) to recover the Debt on the Client’s behalf subject to the provisions of this clause 5. ADVANTIS CREDIT LTD shall have absolute discretion to instruct solicitors of its own choice and to change such solicitors from time to time. ADVANTIS CREDIT LTD 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. ADVANTIS CREDIT LTD shall not be liable for the negligence or default of the Appointed Solicitor.
5.3. Without prejudice to clauses 4.7, 4.10, 7.3 and 11.3, ADVANTIS CREDIT LTD 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 ADVANTIS CREDIT LTD.
5.4. The Client hereby agrees to lend its name to any proceedings which ADVANTIS CREDIT LTD instructs the Appointed Solicitor to bring with the Client’s written consent in relation to the Debt, and the Client will give all such further assistance as may be necessary to enable ADVANTIS CREDIT LTD to pursue such proceedings and enforce any judgment obtained.
6. OBLIGATIONS OF THE CLIENT
6.1. The Client shall:
6.1.1. Provide to ADVANTIS CREDIT LTD all necessary documents to prove the existence of the Debt to be collected;
6.1.2. notify ADVANTIS CREDIT LTD within 24 hours of any receipt of any payment or part payment of the Debt or of any agreement on the part of the Client with the Debtor relating to the Debt;
6.1.3. Serve all notices, warnings and demands required by law to be served upon the Debtor and notify ADVANTIS CREDIT LTD of any instance where the Client has not done so; and
6.1.4. Respond to requests and enquiries from ADVANTIS CREDIT LTD within 7 days of receipt of the same.
7. CHARGES AND FEES
7.1. The Client will pay to ADVANTIS CREDIT LTD the Administration Fee on submission of the membership completion on the date of this Agreement before any debt case can be received.
7.2. In consideration of the Services provided by ADVANTIS CREDIT LTD the Client will pay ADVANTIS CREDIT LTD the Collection Charge as specified or referred to in the Tariff for the Debt. ADVANTIS CREDIT LTD will raise a net invoice in respect of its Collection Charge with the removal of all commission fees and any other charges that apply as set out in the tariff and agreement of ADVANTIS CREDIT LTD’s invoice.
7.3. The Collection Charge for litigation collections will be payable on a monthly basis in respect of charges arising in the previous month unless the Collection Charge amounts to less than £100.00 (excluding VAT) in which case ADVANTIS CREDIT LTD 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 ADVANTIS CREDIT LTD 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 Charge.
7.4. Any Collection Charge and other sums due to ADVANTIS CREDIT LTD 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. Without prejudice to its other rights and remedies, ADVANTIS CREDIT LTD will be entitled to charge the Client interest at the annual rate of 4% above NatWest’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. Without prejudice to its other rights and remedies, ADVANTIS CREDIT LTD shall not be obliged to provide the Services in respect of the 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 ADVANTIS CREDIT LTD may deduct or set-off from monies received by ADVANTIS CREDIT LTD as payment of the Debt any sums owed to ADVANTIS CREDIT LTD by the Client, whether or not such sums are owed under this Agreement or under any other agreement between ADVANTIS CREDIT LTD and the Client.
7.8. Without prejudice to any other of ADVANTIS CREDIT LTD’s rights, failure by the Client to make any payment due on its due date for payment will entitle ADVANTIS CREDIT LTD 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.
7.9. Any work undertaken by ADVANTIS CREDIT LTD other than the provision of the Services shall be outside the scope of this Agreement and may be provided by ADVANTIS CREDIT LTD on and subject to terms to be agreed between ADVANTIS CREDIT LTD 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 ADVANTIS CREDIT LTD by the Client in relation to the Services may be used or disclosed to a third party for (a) the purposes of credit reference checks and debt tracing and recovery and other similar activities or (b) for operational reasons, including but not limited to hosting or outsourcing of ADVANTIS CREDIT LTD's data processing operations
8.3.2. that it shall be responsible for obtaining the informed consent of the subjects of any information provided to ADVANTIS CREDIT LTD (where such consent is required under applicable law) so as to enable ADVANTIS CREDIT LTD to lawfully use such information for the purposes described in clause 8.3.1 or to disclose such information to any of ADVANTIS CREDIT LTD’s subcontractors or agents appointed for such purposes.
9. LIABILITY
9.1. The following provisions set out ADVANTIS CREDIT LTD’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. ADVANTIS CREDIT LTD 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 ADVANTIS CREDIT LTD or its employees, officers, agents or subcontractors.
9.4. ADVANTIS CREDIT LTD 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 ADVANTIS CREDIT LTD 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, ADVANTIS CREDIT LTD’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 Debt in respect of which the Event of Default arises.
9.6. ADVANTIS CREDIT LTD 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 ADVANTIS CREDIT LTD 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, ADVANTIS CREDIT LTD’s and its Associated Companies’ liability to the Client shall not be excluded or limited in respect of fraud or fraudulent misrepresentation by ADVANTIS CREDIT LTD and its Associated Companies’, or death or personal injury caused by ADVANTIS CREDIT LTD’s and its Associated Companies’ negligence (or the negligence of its employees or officers).
10. INDEMNITY
10.1. The Client shall indemnify ADVANTIS CREDIT LTD 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 or 11.3) remain in force until the completion of the Services by ADVANTIS CREDIT LTD unless and until the Client provides ADVANTIS CREDIT LTD 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. ADVANTIS CREDIT LTD may terminate this Agreement immediately upon giving written notice to the Client where ADVANTIS CREDIT LTD determines, in its sole discretion that it is unable to collect the Debt at which point no refund of the administration fee is refundable.
11.4. 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:-
11.4.1. the Client shall forthwith upon termination pay to ADVANTIS CREDIT LTD any monies then owing to ADVANTIS CREDIT LTD under this Agreement, including but not limited to any costs and expenses incurred by ADVANTIS CREDIT LTD and not already paid for by the Client, in providing Services prior to the date of termination;
11.4.2. 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 11.4.1) have the obligation to pay to ADVANTIS CREDIT LTD the Collection Charge that would have been payable by the Client had the outstanding balance been collected in full by ADVANTIS CREDIT LTD on the Debt held by ADVANTIS CREDIT LTD at the termination date.
11.4.2. ADVANTIS CREDIT LTD 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 ADVANTIS CREDIT LTD may disclose confidential information to its and its Associated Companies’ employees, officers, agents or sub-contractors to the extent necessary in order to provide the Services, in accordance with clause 8.3 or clause 14.1.
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 Debt.
12.3. ADVANTIS CREDIT LTD hereby notifies the Client that for its protection, telephone calls with ADVANTIS CREDIT LTD and emails sent to ADVANTIS CREDIT LTD may be recorded or monitored to which the Client hereby consents.
13. FORCE MAJEURE
13.1. ADVANTIS CREDIT LTD 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 ADVANTIS CREDIT LTD 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. ADVANTIS CREDIT LTD is entitled to assign the benefit and burden of this Agreement at any time to an Associated Company of ADVANTIS CREDIT LTD or any other third party and ADVANTIS CREDIT LTD or its assignees shall be entitled to sub-contract their obligations hereunder.
14.2 Where performance of this Agreement is required in any country outside the United Kingdom, then each party shall nominate its local operating Associated Company or sub-contractor in the country concerned to assume the respective rights and obligations of each party as set out in this Agreement regarding performance of the Services and payment of Collection Charges and legal fees all as referable to the Debt to be collected in the country concerned
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 ADVANTIS CREDIT LTD unless in writing and signed by a duly authorised officer of ADVANTIS CREDIT LTD.
16.2. Variations to the Services to be provided by ADVANTIS CREDIT LTD to the Client shall be recorded by the completion of an addendum, which once signed and completed by ADVANTIS CREDIT LTD 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 or 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 ADVANTIS CREDIT LTD’s liability for fraudulent misrepresentation.
Terms and Conditions - Platinum & Diamond Annual Premium
AGREEMENT
This Agreement is made on the date on which the Application Form submitted by the Client is accepted by Advantis Credit Limited, between:
1. PARTIES
1.1. Advantis Credit / Advantisonline.co.uk a company incorporated in England under registration number 5223252 whose registered office is at Advantis Credit LTD, Minton Hollins Building, Shelton Old Road, Stoke-on-Trent, ST4 and the Client (Client as defined in clause 3.1.5)
2. BACKGROUND
2.1.Advantis Credit LTD agrees to provide the Client with debt collection services (“Services”) in relation to those debts which are placed with Advantis Credit LTD 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. “Application Form” means the application form requesting ADVANTIS CREDIT LTD to perform the Services as such form is set out on the Website.
3.1.3. “Appointed Solicitor” means the solicitor(s) instructed by ADVANTIS CREDIT LTD from time to time pursuant to clause 5.
3.1.4. “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.
3.1.5. “Client” means the company whose name, registered company number, registered company address and incorporation details are specified on the Application Form.
3.1.6. “Collection Charge” means in respect of each Debt placed with ADVANTIS CREDIT LTD for collection the charge payable to ADVANTIS CREDIT LTD in accordance with the terms set out in clause 7 and at the rates set out in the Tariff as varied from time to time in accordance with clause 7.8.
3.1.7. Debtor” means a person or corporate body howsoever formed owing a Debt to the Client.
3.1.8. “Debt” means any debt referred or to be referred by the Client to ADVANTIS CREDIT LTD for collection under this Agreement.
3.1.9 “Tariff” means the tariff as specified on the Website at the date on which a Debt is placed with ADVANTIS CREDIT LTD for collection by the Client.
3.1.9. “Website” means www.advantisonline.co.uk
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 ADVANTIS CREDIT LTD as its exclusive agent to recover Debts and ADVANTIS CREDIT LTD agrees to accept such appointment. The Client shall not appoint any other person to recover the Debts placed with ADVANTIS CREDIT LTD, nor seek to recover the Debts itself.
4.2. ADVANTIS CREDIT LTD does not guarantee that it will recover all or part of the Debts but agrees to use its reasonable endeavour’s to recover the Debts.
4.3 ADVANTIS CREDIT LTD warrants that it has sufficient experience, knowledge and resources to conduct the Services, and undertakes to conduct the Services to the best of its ability and in accordance with all applicable legislation and codes of conduct or good practice or similar requirements.
4.4 The warranty provided by ADVANTIS CREDIT LTD in clause 4.3 is in lieu of all other warranties and all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
4.5. Payments received by ADVANTIS CREDIT LTD on behalf of the Client in respect of the recovery of Debts shall be remitted to the Client net of ADVANTIS CREDIT LTD’s Collection Charges, costs and disbursements within 10 working days of receipt.
4.6. Where payments are to be submitted net, ADVANTIS CREDIT LTD 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 (Commissions) and any other sums (together with any applicable VAT) due to ADVANTIS CREDIT LTD in respect of those Debts.
4.7. Debts paid direct to the Client from whatever source, shall be subject to the Collection Charges for the Services performed by ADVANTIS CREDIT LTD 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.
4.8. 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.
4.9. ADVANTIS CREDIT LTD and its Associated Companies 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 4.6, deduct there-from and retain and account for any charges owing and due to ADVANTIS CREDIT LTD and its Associated Companies and such Appointed Solicitor and/or agents.
4.10. If the Client wishes to withdraw a Debt placed with ADVANTIS CREDIT LTD for collection before the collection process is completed, then the Client will forthwith notify ADVANTIS CREDIT LTD in writing. If the Client withdraws a Debt placed with ADVANTIS CREDIT LTD 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 ADVANTIS CREDIT LTD, including but not limited to Court fees and solicitors’ costs and fees and disbursements, together in each case with any applicable VAT.
4.11. All sums payable by the Client to ADVANTIS CREDIT LTD 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 ADVANTIS CREDIT LTD selecting and instructing solicitors (“the Appointed Solicitor”) to recover Debts on the Client’s behalf subject to the provisions of this clause 5. ADVANTIS CREDIT LTD shall have absolute discretion to instruct solicitors of its own choice and to change such solicitors from time to time. ADVANTIS CREDIT LTD 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. ADVANTIS CREDIT LTD shall not be liable for the negligence or default of the Appointed Solicitor.
5.3. Without prejudice to clauses 4.7, 4.10, 7.3 and 11.3, ADVANTIS CREDIT LTD 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 ADVANTIS CREDIT LTD.
5.4. The Client hereby agrees to lend its name to any proceedings which ADVANTIS CREDIT LTD 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 ADVANTIS CREDIT LTD to pursue such proceedings and enforce any judgment obtained.
6. OBLIGATIONS OF THE CLIENT
6.1. The Client shall:
6.1.1. Provide to ADVANTIS CREDIT LTD all necessary documents to prove the existence of the Debts to be collected;
6.1.2. Notify ADVANTIS CREDIT LTD 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 ADVANTIS CREDIT LTD of any instance where the Client has not done so; and
6.1.4. Respond to requests and enquiries from ADVANTIS CREDIT LTD within 7 days of receipt of the same.
7. CHARGES AND FEES Platinum Membership Accounts
7.1. The Client will pay to ADVANTIS CREDIT LTD an annual membership fee commencing on the date of this Agreement, at the rate set out in the Tariff as varied from time to time in accordance with clause 7.8. The annual membership fee will be payable in advance of loading debt cases on the day that the membership is received and accepted by ADVANTIS CREDIT LTD. The length of the membership is twelve (12) months only. Cases that have been submitted at any point within that twelve month period shall continue to be collected on behalf of the client until successful or passed back to the client. In this case the client will receive all monies net of commissions and other charges as set out within the agreement. Clients will be reminded near to the end of their membership and invited to renew.
7.1.1. CHARGES AND FEES Diamond Membership Accounts
The Client will pay to ADVANTIS CREDIT LTD a membership bond commencing on the date of this Agreement, at the rate set out in the Tariff as varied from time to time in accordance with clause 7.8. The membership bond fee +VAT will be payable in advance of loading debt cases on the day that the membership is received and accepted by ADVANTIS CREDIT LTD. The membership bond will be refundable to the client on receipt of the 100th (one hundredth) debt case loaded within the 365 day period as set out in the conditions of the agreement. The client will not be asked to renew the bond on renewal of the membership provided the level of debt cases is in line with those set out within the agreement. If during the member ship the amount of debt cases falls lower than the expectations as set out within the agreement the fee will become payable as set out within the tariff. The fee if it becomes payable will be deducted either from the advance bond or if in a renewal membership cycle will be deducted from the gross amount of collected monies (Offset).
7.1.2 On renewal of the membership with ADVANTIS CREDIT LTD, Diamond clients will not be liable for the bond fee plus vat as in year one unless the client has fallen below the minimum requirement of 100 cases loaded either in the previous year or subsequent year of membership. If the fee becomes payable this will be invoiced on 14 day terms from the date of invoice and where available this will be offset against any monies due to the client.
7.2. In consideration of the Services provided by ADVANTIS CREDIT LTD the Client will pay ADVANTIS CREDIT LTD the Collection Charges as specified or referred to in the Tariff for the relevant Debt. Collection Charges are payable as off-set from the gross amount payable by ADVANTIS CREDIT LTD in respect of monies collected. The amount issued to the client will be the net amount of collections after all commissions and any additional charges have been deducted.
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 ADVANTIS CREDIT LTD 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 ADVANTIS CREDIT LTD 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 ADVANTIS CREDIT LTD 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. Without prejudice to its other rights and remedies, ADVANTIS CREDIT LTD will be entitled to charge the Client interest at the annual rate of 4% above NatWest’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. Without prejudice to its other rights and remedies, ADVANTIS CREDIT LTD 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 ADVANTIS CREDIT LTD may deduct or set-off from monies received by ADVANTIS CREDIT LTD as payment of the Debts any sums owed to ADVANTIS CREDIT LTD by the Client, whether or not such sums are owed under this Agreement or under any other agreement between ADVANTIS CREDIT LTD and the Client.
7.8. ADVANTIS CREDIT LTD shall be entitled by notice in writing to the Client to amend the Collection Charges set out or referred to in the Tariff from time to time in which case, the Client shall have the option, by notice in writing to ADVANTIS CREDIT LTD, 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 ADVANTIS CREDIT LTD.
7.9. Without prejudice to any other of ADVANTIS CREDIT LTD’s rights, failure by the Client to make any payment due on its due date for payment will entitle ADVANTIS CREDIT LTD 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 ADVANTIS CREDIT LTD other than the provision of the Services shall be outside the scope of this Agreement and may be provided by ADVANTIS CREDIT LTD on and subject to terms to be agreed between ADVANTIS CREDIT LTD 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 ADVANTIS CREDIT LTD by the Client in relation to the Services may be used or disclosed to a third party for (a) the purposes of credit reference checks and debt tracing and recovery and other similar activities or (b) for operational reasons, including but not limited to hosting or outsourcing of ADVANTIS CREDIT LTD's data processing operations
8.3.2. that it shall be responsible for obtaining the informed consent of the subjects of any information provided to ADVANTIS CREDIT LTD (where such consent is required under applicable law) so as to enable ADVANTIS CREDIT LTD to lawfully use such information for the purposes described in clause 8.3.1 or to disclose such information to any of ADVANTIS CREDIT LTDs subcontractors or agents appointed for such purposes.
9. LIABILITY
9.1. The following provisions set out ADVANTIS CREDIT LTD’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. ADVANTIS CREDIT LTD 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 ADVANTIS CREDIT LTD or its employees, officers, agents or subcontractors.
9.4. ADVANTIS CREDIT LTD 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 ADVANTIS CREDIT LTD 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, ADVANTIS CREDIT LTD’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. ADVANTIS CREDIT LTD 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 ADVANTIS CREDIT LTD 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, ADVANTIS CREDIT LTD’s and its Associated Companies’ liability to the Client shall not be excluded or limited in respect of fraud or fraudulent misrepresentation by ADVANTIS CREDIT LTD and its Associated Companies’, or death or personal injury caused by ADVANTIS CREDIT LTD’s and its Associated Companies’ negligence (or the negligence of its employees or officers).
10. INDEMNITY
10.1. The Client shall indemnify ADVANTIS CREDIT LTD 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, no refund of the annual membership is payable under any circumstances. 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 ADVANTIS CREDIT LTD any monies then owing to ADVANTIS CREDIT LTD under this Agreement, including but not limited to any costs and expenses incurred by ADVANTIS CREDIT LTD 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 ADVANTIS CREDIT LTD the Collection Charge that would have been payable by the Client had the outstanding balance been collected in full by ADVANTIS CREDIT LTD on all debts held by ADVANTIS CREDIT LTD at the termination date. ADVANTIS CREDIT LTD will cease to collect on any cases held within the companies work flow on receipt of cancellation by the client. These cases will be returned to the client regardless of the stage the case has achieved with the work flow.
11.3.3. ADVANTIS CREDIT LTD 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 ADVANTIS CREDIT LTD may disclose confidential information to its and its Associated Companies’ employees, officers, agents or sub-contractors to the extent necessary in order to provide the Services, in accordance with clause 8.3 or clause 14.1.
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. ADVANTIS CREDIT LTD hereby notifies the Client that for its protection, telephone calls with ADVANTIS CREDIT LTD and emails sent to ADVANTIS CREDIT LTD may be recorded or monitored to which the Client hereby consents.
13. FORCE MAJEURE
13.1. ADVANTIS CREDIT LTD 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 ADVANTIS CREDIT LTD 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. ADVANTIS CREDIT LTD is entitled to assign the benefit and burden of this Agreement at any time to an Associated Company of ADVANTIS CREDIT LTD or any other third party and ADVANTIS CREDIT LTD or its assignees shall be entitled to sub-contract their obligations hereunder.
14.2 Where performance of this Agreement is required in any country outside the United Kingdom, then each party shall nominate its local operating Associated Company or sub-contractor in the country concerned to assume the respective rights and obligations of each party as set out in this Agreement regarding performance of the Services and payment of Collection Charges and legal fees all as referable to Debts to be collected in the country concerned.
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 ADVANTIS CREDIT LTD unless in writing and signed by a duly authorised officer of ADVANTIS CREDIT LTD.
16.2. Variations to the type of debts to be referred by the Client to ADVANTIS CREDIT LTD or to the Services to be provided by ADVANTIS CREDIT LTD to the Client shall be recorded by the completion of an addendum, which once signed and completed by ADVANTIS CREDIT LTD 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 or 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 ADVANTIS CREDIT LTD’s liability for fraudulent misrepresentation.
Terms and Conditions – Trace Case Accounts
1. CHARGES AND FEES Trace Case Accounts
1.1. The Client will pay to ADVANTIS CREDIT LTD an individual Trace fee payable on the date of clarification that the search has been verified, at the rate set out in the Tariff.
1.2 Once a client instructs ADVANTIS CREDIT LTD to commence a Trace search they are bound by the Terms of that agreement and if revoked before the Trace has been completed the client agrees to pay the full amount as set out within the tariff including all payable vat amounts.
1.3 Advantis Credit LTD reserves the right to amend the tariff as stated from time to time and agrees to inform the client of any increase or decrease before completion of the Trace search.
2. TERMINATION
2.1. This Agreement shall remain in force for an undisclosed period of time from commencement of the Agreement and shall only conclude on successful verification of the case submitted by the client. 2.2 No charge will be required for any case that has not been successful.
2.3 ADVANTIS CREDIT LTD will not release information relating to a case without the payment of the fee as set out within the tariff, where the client declines to provide payment of the fee defined clearly within the tariff, ADVANTIS CREDIT LTD will invoice the client directly for the fee as set out within the agreement.
3. CLIENT OBLIGATION
3.1 When the client instructs ADVANTIS CREDIT LTD to begin a Trace case they automatically agree that the fee will be paid in all cases where ADVANTIS CREDIT LTD confirms verification that the Trace has been successful without delay or exception.