Terms and conditions for
services provided by Tremark Associates Limited
1. Definitions
and Interpretation
1.1 In these
Conditions the following words shall have the following meanings:
“Client”
means the individual, partnership,
company or any other entity instructing Tremark to carry out Services.
“Conditions”
means these terms and conditions
incorporated into every contract for Services made between the Client and
Tremark.
“Services”
means any of the services and
activities carried out by Tremark on behalf of the Client, including collection
of accounts, tracing absconding debtors, legal services and bespoke credit
management assistance.
“Tremark”
means Tremark Associates Limited
(Company number 03120853) whose registered address is Joshua Chambers 322 York
Road Leeds LS9 9DN and includes any employees, agents, representatives,
suppliers or any other third parties contracted by Tremark in providing the
Services.
1.2 In these
Conditions references to any statute or statutory provision shall, unless the
context otherwise requires, be construed as a reference to that statute or
statutory provision as from time to time amended, consolidated, modified,
extended, re-enacted or replaced.
1.3 In these
Conditions references to the masculine include the feminine and the neuter and
to the singular include the plural and vice versa as the context admits or
requires.
1.4 In these
Conditions headings will not affect the construction of these Conditions.
2. Application
2.1 Subject to
any variation under Condition 2.3, any contract or agreement for Services
between Tremark and the Client will be on these Conditions to the exclusion of
all other terms and conditions (including any terms or conditions which the
Client purports to apply under any document).
2.2 These
Conditions supersede all previous terms and conditions in force between Tremark
and the Client and prospective clients unless otherwise agreed in writing by
Tremark.
2.3 Any
variation to these Conditions shall have no effect unless expressly agreed in
writing and signed by a Director of Tremark. Nothing in this Condition will
exclude or limit Tremark's liability for fraudulent misrepresentation.
2.4 Each
request by the Client for Tremark to provide the Services shall be deemed to be
a request by the Client to receive Services subject to these Conditions.
3. Tracing
3.1 Absconder
Trace
3.1.1 Where tracing
is charged on a “No Trace, No Fee” basis a successful trace is where a contact
address for the subject is obtained and confirmed by Tremark to the Client.
3.2 Employment
Trace
3.2.1 Where tracing
is charged on a “No Trace, No Fee” basis a successful trace is where either:
3.2.1.1 the
subjects employer’s details are provided by Tremark to the Client; or
3.2.1.2 the
subject is confirmed by Tremark to the Client as self-employed; or
3.2.1.3 the
subject is confirmed by Tremark to the Client as unemployed.
3.3 Trace
Re-check Requests
3.3.1 If requested,
re-checks will be carried out within ninety (90) days of the original report.
3.3.2 Re-checks
requested after the expiry of the ninety (90) day period referred to in
Condition 3.3.1 above will be treated as a new trace.
3.3.3 Where
information supplied by Tremark is found to have been incorrect at the time of
the original report, a full credit of the original report fee will be issued to
the Client.
3.3.4 Where
information supplied by Tremark is found to have been incorrect at the time of
the original report but new information is obtained in the course of the
re-check, a full credit of the original report fee will be issued to the Client
and the new information will be supplied and invoiced to the Client at the
agreed trace fee.
3.3.5 Where
information supplied by Tremark is found to have been correct at the time of
the original report and where new information is obtained in the course of the
re-check, a further fee equal to the original report fee will be charged to the
Client.
3.3.6 Where
information supplied by Tremark is found to have been correct at the time of
the original report and that information is confirmed as still correct or an
approximate date of leaving since the original report date is confirmed in the
course of the re-check, a further fee equal to 50% of the original report fee
will be charged to the Client in addition to the original report fee.
4. Service of
Documents
4.1 The
collection and delivery of documents from the Client’s premises are subject to
a collection/delivery fee as advised to the Client from time to time by
Tremark.
4.2 Subject to
the remaining provisions of this Condition 4 below, the fee agreed between
Tremark and the Client for the service of documents includes attendance at the
subject’s address in accordance with CPR Rules (Part 6) or equivalent to
attempt service and the preparation of a witness statement.
4.3 If
requested by the Client, an affidavit of service will be prepared and sworn by
Tremark subject to an additional fee.
4.4 Unless the
Client provides triplicate copies of each set of documents to be served,
Tremark reserves the right to make reasonable charges to the Client for
photocopying of documents prior to service.
4.5 Fees for
the postage of large or bulky items will be charged at cost by Tremark to the
Client.
4.6 Fees for
the same day service of documents will be advised by Tremark to the Client and
may include courier charges and fees at an hourly rate.
4.7 Fees for
the next day service of documents will be advised by Tremark to the Client and
may include overnight guaranteed delivery charges.
5. Debt
Collection
5.1 Tremark
maintains a separate client account with its bankers and undertakes to notify
the Client whenever possible of any payment received and which requires
processing through the client account.
5.2 Tremark
will always endeavour to recover cheques from the Client's debtors made payable
to the Client.
5.3 Any monies
received and processed through Tremark’s client account will be accounted to
the Client as soon as such funds have been cleared. In the event of any such
payments received by cheque or other means which are advanced to the Client are
subsequently returned unpaid by the bank or other organisation the Client
agrees to reimburse Tremark immediately and that interest of 5% a month will be
charged on those monies until repaid in full.
5.4 Tremark reserves
the right to charge the Client for any charges incurred for the processing of
funds through the client account, including without limitation to the
generality of the foregoing any fees incurred for special clearance of cheques,
telegraphic transfer fees, recharge bank fees and in the case of foreign
transactions where currency fluctuations and conversion-charges from time to
time in force will apply.
5.5 Where the
Client requires Tremark to take payment of debts from the Client’s debtors by
way of card payments, Tremark will charge the Client a 2.5% merchant service
charge for all types of card payments. In the event that a payment taken by
card by Tremark is paid to the Client and subsequently that card payment is
charged back the Client agrees to reimburse Tremark immediately and that
interest of 5% a month will be charged on those monies until repaid in full.
5.6 Tremark
will enforce the Late Payment of Commercial Debts (Interest) Act 1998 (as
amended from time to time) on all outstanding commercial debts unless otherwise
agreed.
5.7 Tremark
reserves the right, in its sole discretion, to cancel reject or withdraw its
performance of the Services (including the collection of any outstanding debts)
either prior to the commencement of the provision of the Services or at any
time during the provision of the Services without penalty or compensation and
without explanation.
5.8 The Client
shall immediately notify Tremark of any monies, offers or correspondence
received directly from the debtor.
5.9 Notwithstanding
Condition 5.8 above, where Services are provided on a “No Collection, No Fee”
basis and:
5.9.1 the
Client receives payment directly; or
5.9.2 the
goods, the subject of the claim, are returned to the Client; or
5.9.3 the
Client agrees any settlement with the debtor;
which necessitates the collection
of, or the reduction in the value of, an account already placed for collection
by Tremark to be held, suspended or discontinued, full details must be notified
immediately by the Client to Tremark and the fees and/or commissions payable at
the rate agreed between Tremark and the Client will be charged by Tremark as if
that account had been successfully collected by Tremark.
5.10 Fees and/or
commissions due to Tremark from the Client are payable from the date that the
account is passed from the Client to Tremark.
5.11 Fees and/or
commissions due to Tremark from the Client are payable on the total amount
recovered from the debtor including all costs and VAT.
5.12 Where the
Client instructs Tremark to hold suspend or discontinue collection of an
account without reasonable explanation or without the recommendation of Tremark
other than in the event of the legal insolvency, death or any other demise of
the debtor, then Tremark will charge the Client the normal fees and/or
commissions payable as if that account had been successfully collected by
Tremark.
5.13 Where it is
confirmed during Tremark’s performance of the Services that the amount due from
the debtor has previously been paid then Tremark will be entitled, at its sole
discretion, to charge the Client the normal fees and/or commissions payable as
if that account had been successfully collected by Tremark.
6. Client’s
Obligations and Liabilities
6.1 The Client
warrants and undertakes that any accounts referred to Tremark for action are
true and valid and agrees that Tremark will not be liable for any loss or
damage which may be suffered as a consequence of the Services provided.
6.2 The Client
warrants and undertakes that any signatory or person or organisation that
submits any request for Services has the proper authority to do so and agrees
and undertakes to be liable for any fee or other charges incurred as a result
of that submission.
6.3 Tremark may
require additional information from the Client to enable Tremark to carry out
the Services. Any request for additional information by Tremark to the Client
should be produced as soon as possible. In the event that the Client has failed
to provide such additional information after the expiry of 14 days, Tremark
reserves the right to re-assign the age of the debt and adjust the commission
rate accordingly.
6.4 Any
information supplied by Tremark to the Client is to be treated as indicative
only and the Client agrees that information supplied by Tremark is supplied in
the strictest of confidence. The Client agrees not to divulge any information
or part to any third party or parties. All correspondence including
conversations are agreed to be strictly confidential and shall not be repeated to
any outside source.
6.5 The Client
shall make all payments due to Tremark under these Conditions or otherwise
without any deduction whether by way of set-off, counterclaim, discount,
abatement or otherwise unless the Client has a valid court order requiring an
amount equal to such deduction to be paid by Tremark to the Client.
6.6 The Client
agrees and permits Tremark to make searches against the Client at any credit
reference agency unless such consent is with withdrawn by written notice to
Tremark.
6.7 The Client
agrees to undertake any reasonable actions and provide instructions to Tremark
upon request to enable Tremark to carry out the Services. In the event that the
Client fails to take such actions or provide instructions within 21 days,
Tremark reserves the right to charge the Client the fees and/or commissions
agreed to be payable as if the Services had been successfully performed in
their entirety by Tremark.
7. Fees,
Commissions and Charges
7.1 The prices
and charges payable by the Client are those quoted prior to the commencement of
work unless otherwise separately agreed in writing to the Client prior to
Tremark being instructed to act by the Client.
7.2 Where
prices and charges are not quoted, Tremark undertakes as far as is reasonable
and is possible to notify the Client of any extraordinary or additional charges
before such charges are incurred or likely to be incurred.
7.3 All fees
and charges are subject to VAT at the prevailing rate where applicable.
7.4 If
requested by Tremark, the Client agrees to make a payment on account of costs
prior to the commencement of the provision of the Services by Tremark.
7.5 Tremark
reserves the right to deduct collection fees from all direct payments received
on behalf of the Client.
7.6 Tremark
credit terms are 14 days from date of invoice unless extended credit terms have
been agreed in writing with a Director of Tremark. Time of payment shall be of
the essence of all contracts between the Client and Tremark to which these
Conditions apply.
7.7 Tremark
charges interest at 8% above base on late payment of invoices in accordance
with the Late Payment of Commercial Debts (Interest) Act 1998 (as amended from
time to time).
7.8 In the
event that the Client instructs Tremark to institute any form of legal action,
the Client will be liable in such cases on an indemnity basis for all charges,
costs, expenses, fees (including court fees) and disbursements of whatever
nature incurred by or billed to Tremark notwithstanding that the same may be recovered
from the Clients debtor(s) and in the event that the same are recovered by
Tremark, the said amounts will be repaid to the Client.
7.9 Where
Tremark is instructed to carry out additional work such as liasing with
solicitors, outside agencies, producing written reports, acting solely as a
witness etc, this work is chargeable at an hourly rate advised from time to
time by Tremark to the Client.
7.10 Tremark
reserves the right to deduct any amounts due to Tremark pursuant to overdue
outstanding invoices to the Client from any monies held in Tremark’s client
account on behalf of that Client.
8. Other
Services
8.1 Tremark
will, on application, provide Clients with other services, tailored to the
Client's specific requirements and for which a separate and or additional
agreement or charges will be reached if requested by the Client.
8.2 Where such
services are provided the Client will be liable for all incumbent overheads,
disbursements and charges whatsoever incurred by Tremark or its agents at the
prescribed rates notified or agreed separately with the Client.
8.3 Where the
Client instructs Tremark to hold suspend or discontinue performance of the such
services without reasonable explanation or without the recommendation of
Tremark, then Tremark reserves the right to charge the Client the fees and/or
commissions agreed to be payable as if such services had been successfully
performed in their entirety by Tremark.
9. Tremark’s
Obligations and Liabilities
9.1 The Office
of Fair Trading licence number 402508 licenses Tremark as per the consumer
credit act 1974.
9.2 Tremark has
in place public liability insurance to the sum of £2,000,000 and professional
indemnity insurance to the sum of £1,000,000 and the Client accepts that
Tremark’s total liability in contract, tort (including negligence or breach of
statutory duty), misrepresentation, restitution or otherwise, arising in
connection with the performance or contemplated performance of the Services
shall be limited to the sum insured provided always that Tremark shall not be
liable to the Client for any indirect or consequential loss or damage (whether
for loss of profit, loss of business, depletion of goodwill or otherwise),
costs, expenses or other claims for consequential compensation whatsoever
(howsoever caused) which arises out of or in connection with the Services
provided by Tremark. Nothing in these Conditions
excludes or limits the liability of Tremark for death or personal injury caused
by the Tremark’s negligence or fraudulent misrepresentation.
9.3 Tremark
will not be liable for any losses or damages arising out of any incorrect
information contained in any legal processes.
9.4 Tremark
accepts no liability for errors or negligence caused by actions of employees,
representatives, suppliers or any other third party contracted by Tremark in
providing the Services or fulfilling its responsibilities and duties towards
the Client.
9.5 Tremark
will at all times maintain confidentiality as regards the information obtained
from the Client in the performance of the Services and shall not disclose such
information to any third party (other than its employees, agents,
representatives, professional advisors, suppliers or any other third parties
contracted by Tremark in providing the Services) without the consent of the
Client (such consent not to be unreasonably withheld) or to the extent that
Tremark is under a legal duty to disclose such information.
9.6 Documents
provided to Tremark are agreed to be provided at the senders own risk and only
copies of relevant documents should, if necessary, be passed for action.
Tremark does not accept responsibility for any documents that are lost or
destroyed. Tremark reserves the right to dispose of or destroy documents still
in its possession three months from date of receipt.
9.7 Witness
court attendance by Tremark is subject to court location and availability.
10. General
Conditions
10.1 Tremark
reserves the right to defer the provision of the Services if it is prevented
from or delayed in the carrying on of its business due to circumstances beyond
the reasonable control of Tremark including without limitation, acts of God,
governmental actions, war or national emergency, acts of terrorism, protests,
riot, civil commotion, fire, explosion, flood, epidemic, lock-outs, strikes or
other labour disputes (whether or not relating to either party's workforce)
provided that, if the event in question continues for a continuous period in
excess of 30 days, either party shall be entitled to give notice in writing to
the other to terminate any contract subject to these Conditions.
10.2 In the event
of a Client failing to pay any charges or invoices due to Tremark, then Tremark
reserves the right not to provide the Client with continuing Services and to
withdraw all or any Services without notice.
10.3 Each right
or remedy of Tremark under these Conditions is without prejudice to any other
right or remedy of Tremark whether under these Conditions or not.
10.4 If any
provision of these Conditions is found by any court, tribunal or administrative
body of competent jurisdiction to be wholly or partly illegal, invalid, void,
voidable, unenforceable or unreasonable it shall to the extent of such
illegality, invalidity, voidness, voidability, unenforceability or unreasonableness
be deemed severable and the remaining provisions of these Conditions and the
remainder of such provision shall continue in full force and effect.
10.5 Failure or
delay by Tremark in enforcing or partially enforcing any provision of these Conditions
will not be construed as a waiver of any of its rights under these Conditions.
10.6 Any waiver
by Tremark of any breach of, or any default under, any provision of these
Conditions by the Client will not be deemed a waiver of any subsequent breach or
default and will in no way affect the other terms of these Conditions.
10.7 Nothing in
these Conditions or the provision of the Services shall create or be deemed to
create a partnership or the relationship of principal and agent or employer and
employee between the Client and Tremark.
10.8 Any notice
hereunder shall be in writing and be deemed to have been duly given if
delivered personally or sent by pre-paid first class post (airmail if to an
address outside the United Kingdom) fax to the party concerned at its last
known address. Notices delivered personally shall be deemed to have been given
when delivered, notices sent by first class post shall be deemed to have been
given seven days after despatch (fourteen days if given by airmail) and notices
sent by fax shall be deemed to have been given on the date of despatch.
10.9 The Client
is not permitted under these Conditions to attempt to employ any Tremark staff
whilst employed by Tremark or for a period of six months after leaving Tremark.
10.10 Tremark and
the Client do not intend that any term of these Conditions will be enforceable
by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person
that is not a party any contract for the provision of Services.
10.11 These
Conditions shall be governed by English Law and all parties shall submit to the
exclusive jurisdiction of the courts of England and Wales.
