Terms and Conditions
for Collection Services of eCollect AG assigned online
§ 1 Scope of Validity, Definitions
(1) To business relations entered into with clients through the websites of eCollect AG, Neuhofstrasse 21, 6340 Baar, ZG, Switzerland (“eCollect”) shall apply solely the Terms and Conditions set forth herein. Deviating conditions shall not be recognized unless eCollect gives an explicit consent to their application in writing.
(2) All clients who are individuals shall have full legal capacity and be of legal age. Upon registration as a legal entity shall be presented a power of attorney for entering into legally binding agreements of this type.
(3) These Terms and Conditions shall apply for clients from Germany, Austria and Switzerland.
§ 2 Registration
Upon filling in the registration form shall be provided true, accurate, actual and full data. If the registration has been incompletely accomplished as well as in case of untrustworthy or incorrect data, eCollect reserves the right to deny the registration of a client, directly cancel it or delete the client account after appropriate time as well as to refuse any given orders.
§ 3 Services of eCollect AG
(1) eCollect shall collect receivables of the client or have collected them by third parties in compliance with the applicable legal provisions according to these Terms and Conditions as well as at its reasonable discretion by taking the required, economically reasonable and lawful debt recovery measures.
(2) eCollect undertakes the extrajudicial collection of receivables which are untitled, presumably undisputed, at any rate, however, justified and not depending on any consideration in-country and abroad. This shall take place by delivering payment reminders at different dunning and conflict escalation stages to the respective debtors through various communication channels. (3) eCollect issues the court proceedings, initiate the necessary enforcement proceedings and bears the costs incurred on behalf of the client in prior.
(4) eCollect takes legal action in co-operation with external lawyers and bears the costs incurred on behalf of the client in prior.
(5) eCollect undertakes the monitoring and the collection of titled receivables (monitoring procedure).
(6) eCollect renders its services towards debtors in Germany, Austria and Switzerland.
(7) eCollect decides on its own responsibility and at its own discretion, whether and what kind of measures should be taken.
(8) eCollect shall at any time execute the orders with the due diligence of a reasonable merchant.
(9) The client shall obtain online access for the purpose of tracking the progress of debt collection through a web application or interfaces provided. The client should inspect the client account at least once a month in order to comment eventual proposed settlements or to request payments.
(10) eCollect is not obliged to monitor the limitation period. eCollect is not liable for the expiry of the limitation period.
§ 4 Services of the Client
(1) The receivables transferred by the client shall be justified and not titled at the time of the transfer. Their claiming does not depend on any consideration any longer. The client shall grant all powers of attorney necessary for the debt collection.
(2) The client shall supply eCollect with all necessary documentation for the purpose of debt collection. This includes debtor data (address, contact details, consumer or business status), the subject matter of the contract, the amount and the legal basis of the claim as well as the progress of the debt collection prior to date. Upon request, the client shall instantly forward any further, in particular legally required data. Furthermore, the client shall provide information about lawyers of the debtor prior involved in the matter, including contact details, reference numbers and previous correspondence, when requested. The parties shall define the specific scope by mutual consent. The client shall forward to eCollect any subsequent extensive correspondence.
(3) During the contract period the client shall transfer to eCollect any newly arising receivables towards debtors, provided the client is not able to manage the debt collection extrajudicially through his own endeavours.
(4) The transfer of receivables shall take place solely through the interfaces and/or the web applications of eCollect. The parties shall mutually agree on the implementation of interfaces for the client.
(5) After transferring the receivables to eCollect the client shall conclude no payment agreements with the debtor as long as the debt collection procedure is not finalised. If despite of the aforementioned there have been concluded payment agreements, the client shall consider the costs for the services of eCollect.
(6) The mandate relationship concerning the transferred specific receivables shall be exclusive during the contract period. (7) The client shall submit the core and claim data essential for the debt collection by means of appropriate channels (for instance, via secured electronic interface). eCollect shall provide for this purpose an EDP-interface along with data record description.
(8) The client declares his consent that the data transmitted by him to eCollect concerning the handling of debt collection as well as the data obtained by eCollect during the collection process shall be forwarded further to the instructed contract lawyers; they are entitled to access the aforementioned data during the handling of the matter – when necessary in this regard; furthermore, the client gives his consent that the data obtained from the lawyers within the necessary processing shall be forwarded to eCollect; in this respect, the client releases the contract lawyers and their employees from the duty of confidentiality.
§ 5 Conclusion of Contract
(1) Descriptions and explanations on the websites of eCollect represent a non-binding specification of services. By his registration and the transfer of receivables the client gives a legally binding order (offer) to the provider for initiating a debt collection procedure regarding the transferred receivable.
(2) eCollect accepts the client’s offer by undertaking the first act of carrying out the order. However, eCollect has a right to refuse the collection of receivables ensuing from illegitimate deals, time-barred claims, unreasonable receivables, unconscionable dealings as well as incompletely described claims within 21 days if the data is not plausible or for eCollect exist grounds to order refusal. The refusal of the placed order proceeds at own discretion of the provider without arising for the client any right of claiming thereby.
§ 6 Collection of Receivables
(1) On the basis of the claim information and at its own discretion, eCollect is entitled to initiate the validation of the debtor address and other debtor data as well as the obtaining of information about his creditworthiness.
(2) The collection of receivables shall proceed in the following form, however, at the discretion of eCollect – unless otherwise agreed upon:
a. Out-of-court debt recovery proceedings: alongside the principal claim and eventual existing subordinate claims of the client (statutory demand costs, value added tax etc.) eCollect claims in a written or textual form towards the debtor statutory interest rate on late payments above the base rate together with incidental costs incurred by the client such as statutory demand costs and, as the case may be, chargeback fees (incidental claims of the creditor) as well as commission fees and anticipated expenses that shall be borne by the debtor in the course of proceeding by virtue of this contract. The fees and costs of eCollect shall be required in accordance to the statutory provisions, as well.
b. The following additional measures shall be taken at the discretion of eCollect: delivery of further payment reminders at distinct dunning and conflict escalation stages to the respective debtor through various communication channels; personal visits to debtors (field work); receiving phone calls from debtors; dealing with the correspondence with debtors, respectively their proxies and other third parties; submission and delivery of documents requested by the debtor (copies of invoices, contracts, titles); conclusion of instalment and deferral agreements as well as their monitoring in accordance with the provisions hereinafter contained; clarification of objections on part of the debtor in joint work with and, as the case may be, in collaboration with the principal.
c. Coincidentally, the debtor and the client account shall be maintained by eCollect, among others, and a regular settlement with the client shall take place.
(3) Should the pre-litigation debt recovery measures not lead to a settlement of the claimed receivables in a particular case, eCollect shall commence court proceedings as far as eCollect regards this as economically reasonable.
(4) Should an appeal or objection be made during the court proceedings, eCollect shall forward the case to the contract lawyers selected by eCollect where eCollect regards this as economically reasonable.
(5) After finalisation of the litigation proceedings eCollect shall further have enforced the affirmative court decisions.
(6) Enforceable titled receivables, for which at present no sufficient chances of collection are identifiable, shall be handled from eCollect in the monitoring procedure. No sufficient chances of collection exist for instance if according to already available information or made inquiry the enforcement measures offer no chance of collection; the enforcement of debtor’s personal property has remained in whole or in part without success; further enforcement measures offer at present no chance of success or no other short-term opportunities for collection can be identified on the basis of the resulting financial circumstances according to the financial status inquiry. Within the monitoring procedure shall be carried out a long-term monitoring of the debtor connected with a regular contacting the debtor for the purpose of collecting a debt.
(7) In case of bankruptcy of the debtor as well as in case of a lost lawsuit eCollect is entitled to close the case or at its own discretion to take measures for further collection of the debt. eCollect is not obliged to register receivables against the debtor in the list of creditors. eCollect shall discuss with the client each separate case of bankruptcy. (8) The client is aware that eCollect is not obliged to institute criminal proceedings against the debtor.
§ 7 Debt Reduction / Settlement Negotiations
(1) eCollect is authorized, at its reasonable discretion and taking account of the interests of the client, to enter on his own into deferral, respectively instalment agreements with the debtors if this appears to be necessary considering the particular case.
(2) Upon transferring the receivables or at a later stage the client shall specify in his web account a settlement value that is reasonable to him, up to which eCollect is entitled to reduce the receivable thus the commission charges pertaining thereto.
(3) Offers of the debtor relating to a particular receivable shall be recorded by eCollect in the client web account. The client can give comments in this regard that will be considered by eCollect as decisive for the further debt collection process.
§ 8 Fees
(1) eCollect is entitled to all charges received in the debt collection proceedings and all realized refunds of the costs as far as these costs have been borne by eCollect.
(2) As regards bearing the costs to which eCollect is entitled, eCollect may also on its own behalf enter into contractual agreement directly with the debtor. The same applies to costs of potential subcontractors of eCollect as well.
(3) The fees and anticipated expenses of eCollect as well as the costs that usually incur in connection with the activity of eCollect, incur initially towards the client. However, the costs and the anticipated expenses shall be claimed solely towards the debtor, unless a special case of termination under these Terms and Conditions takes an effect. The client shall assign to eCollect in lieu of performance the claim for refund of all debt collection fees incurred within the debt recovery procedure. Upon revenues of the debtor the assignment shall be cancelled. eCollect shall accept the assignment.
(4) Lawyer’s fees shall be borne by eCollect. Accordingly, eCollect is entitled to claim lawyer’s fees alongside the claims of the client towards the debtor and in case of payment to raise a claim.
(5) eCollect receives a conditional fee in the amount of 100% of the collected default interests. eCollect obtains further a conditional fee of 50% on the payments of the principal claim collected within the monitoring procedure, including compensation for damages, statutory demand costs and bank chargeback fees.
§ 9 Set-Off & Settlement of Collected Payments
(1) In the relationship between the parties the set-off of all payments collected in the course of the entire proceedings shall initially be made to cover 1. The commission charges together with all costs, anticipated expenses and fees that have been paid (in advance) by eCollect in compliance with this contract, 2. The principal claim, 3. Subordinate claims of the creditor and 4. Any cash expenditures.
(2) The funds realized within the monitoring procedure shall inter partes be initially set off from 1. The commission charges 2. The cash expenditures if these have been borne by eCollect 3. The cash expenditures that have been borne by the client 4. The principal claim and 5. Other subordinate claims of the creditor.
(3) eCollect shall settle with the client the funds from the realized payments that shall be paid out on a yearly basis for each preceding period in accordance with the textual (by email is sufficient) agreements reached hereto. The client may track the current status of the collected and outstanding receivables at any time by accessing the website of eCollect. Moreover, a settlement and paying out of funds shall be carried out if they have reached a particular amount agreed by the parties upon mutual consent.
(4) eCollect shall be entitled to settle third-party costs at any time by available funds resulting from the debt collection.
(5) Unless otherwise agreed, the collected payments shall be set off towards the debtor according to the applicable legal rules.
§ 10 Duration of Contract and Termination
(1) The contract shall be concluded for an indefinite period of time. The termination may be carried out by both parties within a period of notice of 3 months to the relevant end of the month.
(2) In case of termination with notice eCollect is entitled to further handle the cases that have been already placed, respectively taken over for a period determined at its discretion.
(3) The right of termination without notice shall not be affected for either parties.
(4) The termination may be made in a textual form via email.
(5) Should the client wish the discontinuation of all on-going proceedings at the time of entry into force of the termination, all third party costs that have not been paid by the debtor yet as well as commission charges, thus all receivables, fees and anticipated expenses incurred for eCollect shall become due immediately to the full amount and be paid by the client. eCollect declares as a precedent condition already at this point the reassignment in respect of the refund claim for outstanding third party costs as far as the refund claim against the debtor has been already assigned in lieu of performance as well as in respect of other assignments pursuant to this contract. eCollect prepares for all receivables an invoice with 14 days the payment term.
(6) The preceding provision on refund of third party costs and payment of fees applies accordingly in case of the withdrawal of specific receivables upon non-terminated contract provided more than 2% of the yearly transferred volume are withdrawn.
§ 11 Liability
(1) eCollect shall not be liable for the realization of the receivables transferred by the client.
(2) eCollect shall not be liable for the expiry of the limitation period of particular receivables transferred by the principal, unless otherwise agreed between the parties.
(3) eCollect excludes liability for breaches of duty by slight negligence as far as these do not affect essential contractual obligations, damages arising from injury to life, limb, health or guarantees or compulsory liability according to the national legislation is realized. The same applies to breaches of duty on part of agents of eCollect. Upon damages caused in another manner, eCollect and its agents shall be liable for intent and gross negligence according to the national legislation. The same applies to damages caused by negligence arising from injury to life, limb or health. Upon property and pecuniary damages caused by negligence eCollect and its agents shall be liable solely for the breach of an essential contractual obligation, however, limited by amount to the damages that are foreseeable and contract-typical at the time of contract formation. Essential contractual obligations are obligations which performance affects the contract and the client may rely on.
§ 12 Storage of Data
(1) The present Terms and Conditions shall be forwarded to the client after conclusion of the contract. As a purely precautionary measure eCollect advises the client to store or print the Terms and Conditions on his own.
(2) Should the order be successfully validated, eCollect shall issue the final billing to the client’s last known address, however, regularly via email. Should the client not require back the documents provided to eCollect within a month after the final billing eCollect is entitled to destroy these documents.
(3) All orders shall be processed electronically. The client agrees as well that eCollect, may transport personal data in compliance with the national data protection legislation within the intended purpose of the order.
§ 13 Subcontractors
eCollect has the right to appoint subcontractors at his own expenses and on his own responsibility as well as to charge third parties with the performance of the contractual obligations of eCollect.
§ 14 Final provisions
(1) The contract language is German.
(2) The client has a right of set-off solely if the counterclaims were determined by a court and were enforceable, were undisputed or recognized in writing by eCollect. This shall not apply to claims that occur as result of a deliberate action/breach of duty taken by eCollect.
(3) The client may exercise a right of retention solely if the claims arise from the same contractual relationship.
(4) Amendments or supplements to this contract shall be made in writing, unless the text form is set forth in this contract.
(5) eCollect is further entitled to sell its web portal and to assign the contract in whole to a legal successor.
(6) Both parties shall keep confidential all contractual relations and their content – also after termination of this agreement at all times.
(7) If a debtor announces that he wishes to complain about the client or eCollect to media or other bodies, the contractual parties undertake to provide immediately information and to assist to each other.
(8) Should particular provisions of this agreement prove to be or become invalid, void or unenforceable, the validity of the agreement shall not be affected entirely thereby. In such case, the parties shall replace the invalid, void or unenforceable provision with one that appears to be economically closest to the pursued aim in a legally admissible way.
(9) If the client is a merchant, a legal entity under public law or a special fund under public law, the place of jurisdiction for all disputes arising from the contractual relations between the client and eCollect shall be the registered office of eCollect, where eCollect remains entitled to file a suit in any otherwise grounded place of jurisdiction.
Last updated:January 7, 2017