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.
2.1 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.
3.1 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:
18.104.22.168 the subjects employer’s details are provided by Tremark to the Client; or
22.214.171.124 the subject is confirmed by Tremark to the Client as self-employed; or
126.96.36.199 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