General Terms and Conditions 2.1 SecurIncasso
Drafted 27th of February 2014
Article 1 - Definitions
1.1 – In these General Terms and Conditions will be understood under;
- “Client”: the counterparty of SecurIncasso in an agreement as referred to in Article 2.1;
- “SecurIncasso”: the partnership having its seat of business in Zwaag (the Netherlands) V.O.F. SecurIncasso, registered in the Trade Register of the Chamber of Commerce in Amsterdam under number 59854804
- “Debtor”: the counterparty of the Client and/or of SecurIncasso;
- “Out-of-court collection”: all collection activities with the exception of the starting of a court procedure at the District Court;
- “Court collection”: starting a Court procedure at the District Court;
- “Successful collection”: the case in which the debtor in addition to the principal amount, has paid also all brought into account interest, collection, and other costs;
- “Legally valid contention”: the case in which SecurIncasso is of the opinion that there is an instance of a well-founded contention by the debtor or on behalf of a lawyer, legal assistance insurance company or another proxy;
1.2 – SecurIncasso is never obliged to accept a commission and reserves the right to terminate an accepted commission if the nature of the commission or acts of the Principal give reason thereto. All commissions will be solely accepted and executed, setting apart the articles 7:404 and 7:407 section 2 Dutch Civil Code, by SecurIncasso.
1.3 – All stipulations in these General Terms and Conditions are also made for the benefit of all those that are working for SecurIncasso, respectively are used by SecurIncasso.
Article 2 – Applicability
2.1 – These General Terms and Conditions form part of all agreements/subscriptions of commission, purporting to the execution of collection activities by SecurIncasso, of all agreements deriving there from and/or relating thereto and declarations of approval between the Client and SecurIncasso, respectively their successors, as well as of all offers, price changes and/or designated offers made by SecurIncasso.
2.2 – Stipulations deviating from these General Terms and Conditions are only into force if and insofar SecurIncasso has confirmed these explicitly and in writing to the Client.
2.3 – If any stipulation, forming part of these General Terms and Conditions or of the agreement, would be invalid or be invalidated, then the agreement will remain intact for the remainder as much as possible and the concerned stipulation shall be replaced in consultation between Parties without delay by a stipulation that approaches the tenor of the original stipulation as much as possible.
2.4 – The applicability of (general) terms and conditions (possibly) used by the Client is explicitly excluded.
Article 3 – Agreement/subscription
3.1 – The agreement between SecurIncasso and the Client is concluded after written confirmation by mail of the acceptation by SecurIncasso and comes into force after receipt of the first annual or monthly subscription fees. The subscription costs can annually be increased by SecurIncasso, whereby SecurIncasso reserves all rights not to implement the increase annually, but reserves the right to implement the increase after a number of passed subscription periods with a maximum of fifty Euro exclusive of VAT per subscription period. SecurIncasso is never obliged to notify the Client of the increase, for the implementation of the increase concerning the new subscription period, in any manner whatsoever.
3.2 – The subscription is valid for a period of one year and shall each time be extended tacitly, unless the Client has cancelled the subscription at least two months and to a maximum of four months before the start of the new subscription period and the Client has received a written confirmation hereof by SecurIncasso.
3.3 – In case of monthly payment or in case of deviations of the standard rate meaning set as of the 1st of January 2014 at two hundred and seventy five Euro (exclusive of VAT) for new Clients in case of an annual subscription and in case of annual payment, applies in case of the start of a two-year contract.
3.4 – SecurIncasso grants the Client a non-exclusive and non-transferable right of use to the label and/or digital file with on it the logo of SecurIncasso and the sentence ‘IN CASE OF NON-PAYMENT WE HAND OVER THE CLAIM FOR COLLECTION TO SECURINCASSO’. Client can annually choose for three sticker sheers with labels and/or a digital file to be received. The right of use solely includes the authorities that have explicitly been granted in these General Terms and Conditions; outside that it is not permitted for the Client to use the label and/or digital file, to publish it in whichever manner in whole or in part, reproduce it or change it without prior permission in writing of SecurIncasso. The right of use of the label and/or digital file encompasses the following action that may be solely executed within the organisation of the Client: to send it in a letter, fax or mail message to a debtor. The right of use ends as soon as the subscription of the Client with SecurIncasso has ended. Should the Client after termination of the subscription nevertheless make use of the digital file or stickers made available, then therefrom derives a contractual fine immediately payable upon demand of € 500 (excl. of VAT) per violation.
3.5 – The subscription is only valid for the company or the person that enters into the subscription. If there is an instance of several limited companies then per limited company a subscription must be concluded to be able to make a claim to the services of SecurIncasso.
3.6 – SecurIncasso reserves the right to terminate the subscription with immediate effect, without restitution of the already paid subscription fees, if the Client, according to SecurIncasso, in an improper manner makes use of the subscription.
3.7 – Client can per year submit without limitation Dutch claims for collection to SecurIncasso. Client also benefits from the favourable price arrangements which SecurIncasso has negotiated with its cooperating bailiffs and lawyers.
3.8 – For foreign claims the Client must sign a declaration of approval before SecurIncasso transfers the claim to its foreign partners. If the Client remains in default to sign the declaration of approval and/or to return it within ten working days to SecurIncasso, SecurIncasso reserves the right for to stop the claim and to bring its costs into account to the maximum height of the fees of SecurIncasso referred to in Article 6.2 of these General Terms and Conditions to be counted over the concerned submitted claim to the Client.
Article 4 – Data and information
4.1 – Client is required to provide the agreement, invoice, reminder letters and summations sent to the Debtor and all other relevant documents with regard to a claim to SecurIncasso.
4.2 – SecurIncasso can suspend the (further) execution of a commission for as long as the Client has not provided all data and information required by SecurIncasso in the form and in the manner as desired by SecurIncasso. Extra costs as well as the consequences if SecurIncasso executes the commission (further), emerged because the Client has provided the required data or information not, not timely or not fully or not properly, will be for the account of the Client.
4.3 – Client is required to inform SecurIncasso without delay regarding facts and circumstances that may be of importance in connection with the execution of the commission and warrants the correctness, completeness and reliability of the data and information provided by or on behalf of him to SecurIncasso.
Article 5 – Execution of the commission
5.1 – SecurIncasso executes both Out-of-court and in-Court collection-commissions it being understood that Court collection-commissions can only be submitted to the sector canton of the competent District Court. SecurIncasso determines the manner in which and by which person(s) the commission will be executed.
5.2 – SecurIncasso shall execute the activities to the best of its abilities; SecurIncasso cannot warrant achieving any result envisaged by the Client.
5.3 – From the moment that SecurIncasso started with the execution of the commission, the Client is no longer authorised to make with his Debtor any arrangements (including acquittals of interest and any costs) and/or payment arrangements or to take monies from that Debtor (including counter performances equivalent to money) into receipt. Client is obliged to refer his Debtor to SecurIncasso. In case of violation of this article SecurIncasso is authorised to bring the total of the costs brought into account to Debtor into account as fees to the Client and if necessary to close the file.
5.4 – SecurIncasso is authorised, without prior permission of the Client to agree a payment arrangement in instalments with the Debtor.
5.5 – SecurIncasso acquires the complete power of attorney to execute all those acts which SecurIncasso deems useful or necessary to be able to (partially) collect the claim. For a settlement of less that the submitted and for granting final acquittal to the Debtor SecurIncasso shall enter as much as possible in consultation with the Client.
Article 6 – Out-of-court collection, fees
6.1 – An Out-of-court collection-commission ends:
a. If the Debtor has paid the claim in full to SecurIncasso or to the Client;
b. If the Debtor legally validly contest the claim of the Client;
c. If the Client withdraws the commission or if SecurIncasso terminates the commission;
d. If the Debtor is in a state of bankruptcy or is admitted to the WSNP;
e. After the Client has terminated his subscription with SecurIncasso.
6.2 – Client is liable to pay to SecurIncasso fees in accordance with the rates, calculation methods and work methods customary at SecurIncasso. The height of the Fees are the collection costs, interest and administration costs. (The administration costs also concern the aforementioned “extra costs” in files.)
6.3 – SecurIncasso is authorised to set off its due fees with the monies received by it for the Client.
6.4 – If the Client, after the commission to collection has been granted to SecurIncasso, receives monies directly from his Debtor, then the Client is obliged to report his immediately to SecurIncasso. Client is obliged to pay from so received amounts an amount in the order of the costs brought into account to Debtor (the fees of SecurIncasso according to article 6.2 of these General Terms and Conditions) as fees to SecurIncasso. This also applies if the collection-commission has been terminated on that moment already.
6.5 – Client is liable to pay to SecurIncasso its fees (article 6.2 of these General Terms and Conditions) if the Debtor is declared bankrupt or ends up in a debt sanitisation arrangement during the collection process as well as upon termination of the collection-commission by the Client or SecurIncasso, also without that the Debtor has paid the claim in whole or in part.
6.6 – SecurIncasso can for the benefit of the Client modify its fees (article 6.2 of these General Terms and Conditions) upon termination of the collection-commission, but reserves the right to bring into account to the Client its full fees (article 6.2 of these General Terms and Conditions), for other collection-commissions, before or thereafter from the Client, as well as in case of absence or late payment from the modified fees by the Client, then SecurIncasso can modify the modified fees to its original fees.
6.7 – If the collection-commission leads to it that the Client repossesses goods, issues a credit-invoice and/or the (partially) waives the claim, then the fees (article 6.2 of these General Terms and Conditions) will remain due to SecurIncasso to be calculated over the original amount of the invoice.
6.8 – If the Client is in a state of liquidation, suspension of payment, bankruptcy or WSNP, then the fees remain due to SecurIncasso over the original amount of the invoice and interest. SecurIncasso shall the set-off due invoices of the Client, if possible, with received monies in its collection-commissions.
Article 7 – Court procedure at the section Canton, fees and after the final verdict
7.1 – A Court procedure at the section Canton ends:
a. After obtaining of a final verdict or a court report of the amicable settlement;
b. If the Client withdraws the commission or if SecurIncasso terminates the commission;
c. If the Debtor is in a state of bankruptcy or is admitted to the WSNP.
7.2 – For a Court collection-commission the Client must sign a declaration of approval and pay an advance before SecurIncasso transfers the claim to its cooperating lawyers and/or bailiffs. If the Client remains in default to sign the declaration of approval and/or to return it within ten working days to SecurIncasso, SecurIncasso reserves the right for to stop the claim and to bring its costs into account to the maximum height of the fees of SecurIncasso referred to in Article 6.2 of these General Terms and Conditions over the concerned submitted claim to the Client.
7.3 – The fees for the Court process at the section Canton consists in addition to the costs for third parties (bailiffs/lawyer costs, court fees, costs excerpts etc.) from a fee (commission rate) for the activities of SecurIncasso based on its worked hours multiplied against an hourly rate of one hundred and twenty five Euro (+annual indexing from the 1st of January 2014) increased with the fees as clarified in article 6.2 of these General Terms and Conditions.
7.4 – In the cases in which a Court commission at the section Canton has ended, then the following steps are possible for the Client:
a. In case of an obtained verdict and possibly no means of recourse at the Debtor, SecurIncasso will compose the final settlement according to the declaration of approval and article 7.3 of these General Terms and Conditions, and the Client can, against an extra fee, let monitor its claim and thus annually let verify the recourse options at the Debtor by SecurIncasso and third parties.
b. In case of an obtained verdict and possibly options for recourse, but the debtor does not pay, SecurIncasso can proceed to let the bailiff serve attachments (on wages) in order to force the debtor to payment.
c. In case of negative verdict, whereby the claim is above seventeen hundred and fifty Euro, the Client can in accordance with article 8 of these General Terms and Conditions, let the collection-commission be continued in appeal by one of the co-operating lawyers of SecurIncasso.
Article 8 – Court collection in contested cases and/or cases other than with the section Canton
8.1 – In case, if possible, the Client chooses to let the collection-commission be continued by one of the co-operating lawyers of SecurIncasso, then the concerned lawyer shall bring the rates applied by him/her into account via SecurIncasso to the Client. SecurIncasso shall arrange for the transfer of the file and/or verdict.
8.2 – If the Client chooses not to continue the collection-commission with one of the cooperating lawyers and/or bailiffs and/or waives any other form of subsequent actions after the collection procedure, then SecurIncasso authorised to bring the total of the costs brought into account to Debtor increased with its commission rates (article 7.3 of these General Terms and Conditions) as fees into account to the Client.
8.3 – In case it shows from the General Terms and Conditions, which are applicable to the claim in the collection of the Client or Debtor, that the Court dispute must be submitted via Arbitration, then SecurIncasso can terminated the collection procedure and is authorised to bring the total of the costs brought into account to Debtor increased with its commission rates (article 7.3 of these General Terms and Conditions) as fees into account to the Client.
Article 9 – Payments and distributions to the Client
9.1 – Payment must take place in advance and without any deduction, discount or set-off in Euros by deposit, direct debit by SecurIncasso or transfer into the bank account number stated in the invoice within the set payment term of fourteen days after the date of the invoice, in the absence of which the Client is in default. SecurIncasso is then authorised to bring Out-of-court costs into account to the Client of 15% over the full due claim with a minimum of seventy five Euro (exclusive of VAT), increased with the legal interest and with an amount of ten Euro (exclusive of VAT) per sent reminder/summation which will be sent before the collection process will be started.
9.2 – SecurIncasso reserves the right (also during the execution of a commission, if the financial position or the payment behaviour of the Client gives cause to that in the opinion of SecurIncasso) to require from the Client whole or partial ????? and/or providing surety in the absence of which SecurIncasso is authorised to suspend the compliance with its obligations.
9.3 – For all Court collection-commissions the rule is that SecurIncasso shall only start therewith after the Client firstly has fully complied with all of his payment-obligation(s) towards SecurIncasso.
9.4 – SecurIncasso obliges towards the Client to distribute the received principal amount, by means of bank transfer from Debtor, within thirty days and received principal amount from the Debtor by means of direct debit collection by SecurIncasso within sixty days to the Client, such after deduction of the Fees due to SecurIncasso and possible outstanding invoice(s) to the Client from SecurIncasso. If SecurIncasso distributes a principal amount, after deduction of its fees, earlier that the aforementioned terms sooner to the Client, then SecurIncasso reserves the right to let other distributions take place via the aforementioned terms.
9.5 – Over the amounts received by SecurIncasso from Debtor no interest will be paid to the Client.
Article 10 – Confidentiality
10.1 – SecurIncasso is obliged to keep the data and information provided by or on behalf of the Client secret towards third parties that are not involved in the execution of the commission. This obligation does not apply insofar on SecurIncasso a lawful or professional duty rests to disclosure or if the Client has released SecurIncasso from the obligation to confidentiality.
10.2 – SecurIncasso is, if it acts for itself in a disciplinary, civil or criminal procedure, authorised to use the data and information provided by or on behalf of the Client as well as other data and information of which it has taken knowledge during the execution of the commission insofar these to its reasonable opinion can be of importance. Except for the explicit prior permission in writing of SecurIncasso it is not permitted for the Client to disclose the content of advices, opinions, working methods, achieved results on submitted collection cases in the amicable and/or Court process or other whether or not written expressions of SecurIncasso or otherwise make available to third parties, except insofar this derives directly from the agreement, takes place by an expert opinion concerning the concerned activities of SecurIncasso, on the Client a duty by law or profession rests, or if the Client acts for himself in a disciplinary, civil or criminal procedure.
Article 11 – Exclusion of liability
11.1 – The liability of SecurIncasso is limited to the amount of the annual subscription costs of the except for insofar this liability is the consequence of wilful intent or gross negligence by SecurIncasso.
11.2 – Client is required to indemnify SecurIncasso and to safeguard it from all claims from third parties – including shareholders, directors, members of the supervisory board and personnel of the Client as well as affiliated legal persons and others that are involved in the organisation of the Client – derive from or relate to the activities of SecurIncasso for the benefit of the Client, except for insofar claims or the consequence of wilful intent or gross negligence by SecurIncasso.
11.3 – A claim to compensation of damage must be submitted no later than within one month after the Client has discovered the damage or reasonably could have discovered to SecurIncasso in writing, in the absence of which the right to compensation of damages is forfeited.
Article 12 – Changing of the General Terms and Conditions
12.1 – SecurIncasso reserves the right to change these General Terms and Conditions at all times. New General Terms and Conditions will be announced in writing or electronically by e-mail and come into force one month after the date of that announcement and after filing at the Chamber of Commerce, unless stated differently in the announcement. If the Client does not object within one month after the date of the announcement with motivation and foundation against the changing in the General Terms and Conditions, then the Client is deemed to have accepted the change. If the Client within one month after the date objects in writing with motivation against the changes in the General Terms and Conditions, then that forms no ground for the dissolution of the agreement, but the last accepted General Terms and Conditions shall remain in force for the Client.
Article 13 – Choice of law and court
13.1 – Solely the laws of the Netherlands governs all agreements between the Client and SecurIncasso, while disputes will be submitted to the competent court in the town where SecurIncasso has its seat of business.