Terms and conditions for the supply of debt recovery services
The following definitions and rules of interpretation apply in these Conditions.
Business Day: a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
Conditions: these terms and conditions as amended from time to time in accordance with Condition 7.4.
Contract: the Contract as defined in the letter from Lackfords to the Client to which these Conditions relate.
Client: as defined as defined in the letter from Lackfords to the Client to which these Conditions relate.
Client Default: has the meaning set out in Condition 3.2.
Controller, processor, data subject, personal data,personal data breach, processingand appropriate technical measures: as defined in the Data Protection Legislation.
Debts: as defined in the letter from Lackfords to the Client to which these Conditions relate.
Debt Instructions: as defined in the letter from Lackfords to the Client to which these Conditions relate.
Data Protection Legislation: the UK Data Protection Legislation andany other European Union legislation relating to personal data and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of personal data (including, without limitation, the privacy of electronic communications); and the guidance and codes of practice issued by the relevant data protection or supervisory authority and applicable to a party.
Fees: as defined in the letter from Lackfords to the Client to which these Conditions relate.
Intellectual Property Rights: patents, rights to inventions, copyright and related rights, moral rights, trade marks and service marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
Lackfords: as defined in the letter from Lackfords to the Client to which these Conditions relate.
Services: as defined in the letter from Lackfords to the Client to which these Conditions relate.
UK Data Protection Legislation: all applicable data protection and privacy legislation in force from time to time in the UK including the General Data Protection Regulation ((EU) 2016/679); the Data Protection Act 2018; the Privacy and Electronic Communications Directive 2002/58/EC (as updated by Directive 2009/136/EC) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended.
(a) A reference to a statute or statutory provision is a reference to it as amended or re-enacted. A reference to a statute or statutory provision includes all subordinate legislation made under that statute or statutory provision.
(b) Any words following the terms including,include, in particular, for example or any similar expression, shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
(c) A reference to writingor writtenincludes email.
2. Basis of contract and supply of services
2.1 Any descriptive matter or advertising issued by Lackfords, and any descriptions contained in any catalogues or brochures or other marketing information of Lackfords, are issued or published for the sole purpose of giving an approximate idea of the services described in them. They shall not form part of the Contract or have any contractual force.
2.2 These Conditions apply to the Contract to the exclusion of any other terms or conditions that the Client seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.3 Debt Instructions shall be submitted by the Client to Lackfords by email or other written form. The Client shall provide sufficient details of each relevant debtor, the amount due and such documentary evidence of each Debt (e.g. invoice, contract, purchase order, correspondence) as Lackfords may reasonably require. Failure to identify the relevant debtor correctly or at all shall not affect the validity of a Debt Instruction.
2.4 Lackfords may at any time, at its discretion and without liability to the Client, terminate any Debt Instruction by giving the Client written notice and the Client may terminate a Debt Instruction by giving Lackfords one calendar month’s written notice to take effect at any time after the expiry of the period of three months from the date of receipt by Lackfords of that Debt Instruction save that no such termination shall affect the amount of any Fee relating to any Debt the subject of that Debt Instruction accruing to Lackfords on or prior to the date such termination takes effect.
2.5 The signatory or person or organisation that submits any Debt Instruction declares that they have the proper authority to do so and agrees to be liable for any Fee(s) arising out of that submission.
2.6 Lackfords (and/or any third party appointed by Lackfords to assist with the provision of the Services) shall provide the Services during the course of normal working hours.
2.7 The Client authorises Lackfords to request and receive payments in respect of any of the Debts directly into a Lackford’s bank account and to set off monies owed by the Client to Lackfords against any such payments. Within 14 days of receipt, in an account of Lackfords, of cleared funds in full or part payment of a Debt, Lackfords shall transfer such funds to the Client less any monies payable to Lackfords.
2.8 Lackfords accepts no responsibility for failure to collect any Debt.
3. Client’s obligations
3.1 The Client shall:
(a) ensure that the terms of each Debt Instruction and any information it provides in connection with it are complete and accurate;
(b) co-operate with Lackfords in all matters relating to the Services;
(c) provide Lackfords with such instructions, information, documents and materials as Lackfords may reasonably require in order to supply the Services, and ensure that such information is complete and accurate in all material respects; and
(d) permit Lackfords or any other person authorised by Lackfords to have reasonable access to details of their debtor records and provide such assistance as Lackfords may reasonably require to enable in order to supply the Services.
3.2 In the event of a breach by the Client of any material terms of the Contract or any failure by the Client to perform any relevant obligation under it (Client Default):
(a) without limiting or affecting any other right or remedy available to it, Lackfords shall have the right to suspend performance of the Services without liability to the Client until the Client remedies the Client Default, and to rely on the Client Default to relieve it from the performance of any of its obligations;
(b) Lackfords shall not be liable for any costs or losses sustained or incurred by the Client arising directly or indirectly from failure or delay by Lackfords to perform any of its obligations under the Contract; and
(c) the Client shall reimburse Lackfords on written demand for any costs or losses sustained or incurred by Lackfords arising directly or indirectly from the Client Default.
3.3 The Client shall pay each invoice submitted by Lackfordsin full and in cleared funds to a bank account nominated in writing by Lackfords andtime for payment shall be of the essence of the Contract.
4. Employment Regulations
4.1 The Client represents, warrants and undertakes to Lackfords that:
(a) no person is employed or engaged by the Client (or by any other person, firm or company) who devotes more than 30% of their working hours to the recovery of any debts owing to the Client or who is part of an organised grouping of employees which has as its principal purpose the recovery of such debts; and
(b) Lackfords shall not as a direct or indirect consequence of the Contract, become the employer of any person by virtue of or pursuant to the Transfer of Undertakings (Protection of Employment) Regulations 2006 (SI 2006/246) (Employment Regulations).
4.2 The Client shall indemnify Lackfords in full for and against all claims, costs, expenses or liabilities whatsoever and howsoever arising incurred or suffered by Lackfords including without limitation all legal expenses and other professional fees (together with any VAT thereon) in relation to:
(a) any breach by the Client of the provisions of Condition 4.1;
(b) anything done or omitted to be done in respect of any person which is deemed to have been done by Lackfords by virtue of the application of the Employment Regulations as a direct or indirect consequence of the Contract; and
(c) any claim made at any time by any person who claims to have become an employee of or have rights against Lackfords by virtue of the application of the Employment Regulations as a direct or indirect consequence of the Contract.
5. Data protection
5.1 Both parties will comply with all applicable requirements of the Data Protection Legislation. This Condition 5 is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under the Data Protection Legislation. In this Condition 5, Applicable Lawsmeans (for so long as and to the extent that they apply to Lackfords) the law of the European Union, the law of any member state of the European Union and/or Domestic UK Law; and Domestic UK Law means the Data Protection Legislation from time to time in force in the UK and any other law that applies in the UK.
5.2 The parties acknowledge that for the purposes of the Data Protection Legislation, the Client is the controller and Lackfords is the processor.
5.3 Without prejudice to the generality of Condition 5.1, the Client will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the personal data to Lackfords for the duration and purposes of the Contract.
5.4 Without prejudice to the generality of Condition 5.1, Lackfords shall, in relation to any personal data processed in connection with the performance by Lackfords of its obligations under the Contract:
(a) process that personal data only on the documented written instructions of the Client unless Lackfords is required by Applicable Laws to otherwise process that personal data. Where Lackfords is relying on laws of a member of the European Union or European Union law as the basis for processing Personal Data, Lackfords shall promptly notify the Client of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit Lackfords from so notifying the Client;
(b) ensure that it has in place appropriate technical and organisational measures, reviewed and approved by the Client, to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting Personal Data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to personal data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it);
(c) ensure that all personnel who have access to and/or process personal data are obliged to keep the personal data confidential;
(d) not transfer any personal data outside of the European Economic Area unless the prior written consent of the Client has been obtained and the following conditions are fulfilled: (i) the Client or Lackfords has provided appropriate safeguards in relation to the transfer; (ii) the data subject has enforceable rights and effective legal remedies; (iii)Lackfords complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any personal data that is transferred; and (iv) Lackfords complies with reasonable instructions notified to it in advance by the Client with respect to the processing of the personal data;
(e) assist the Client, at the Client’s cost, in responding to any request from a data subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
(f) notify the Client without undue delay on becoming aware of a personal data breach;
(g) at the written direction of the Client, delete or return personal data and copies thereof to the Client on termination of the Contract unless required by Applicable Law to store the personal data; and
(h) maintain complete and accurate records and information to demonstrate its compliance with this Condition 5 and allow for audits by the Client or the Client’s designated auditor and immediately inform the Client if, in the opinion of Lackfords, an instruction infringes the Data Protection Legislation.
5.5 Personal data the subject of processing shall include details relating to the identities, names, contact details and financial information of those owing Debts to the Client. Such processing shall include the storage of relevant data by Lackfords (in accordance with its policies) and its use by Lackfords, its employees and representatives to recover such Debts and shall continue during such period as the Services are being provided.
5.6 The Client consents to Lackfords appointing third party processors of Personal Data under the Contract provided Lackfords enters into a written agreement with such party incorporating terms which are substantially similar to those set out in this Condition 5 and which Lackfords confirms reflect and will continue to reflect the requirements of the Data Protection Legislation. As between the Client and Lackfords, Lackfords shall remain fully liable for all acts or omissions of any third party processor appointed by it pursuant to this Condition 5.
6. Consequences of termination
6.1 On termination of the Contract:
(a) the Client shall immediately pay to Lackfords all of Lackfords’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, Lackfords shall submit an invoice, which shall be payable by the Client immediately on receipt;and
(b) the Client shall return all materials of Lackfords. Until they have been returned, the Client shall be solely responsible for their safe keeping and will not use them.
6.2 Termination of the Contract shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination.
6.3 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination of the Contract shall remain in full force and effect.
7.1 Force majeure.Neither party shall be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under the Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control.
7.2 Assignment and other dealings.
(a) Lackfords may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract.
(b) The Client shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract without the prior written consent of Lackfords.
7.3 Entire agreement.
(a) The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
(b) Each party acknowledges that in entering into the Contract it does not rely on, and shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.
(c) Nothing in this Condition shall limit or exclude any liability for fraud.
7.4 Variation.Lackfords may vary the Contract, by giving the Client one calendar month’s written notice of any such variation to take effect on the expiry of such notice period, save that no such variation shall affect the amount of any Fee relating to any Debt the subject of a Debt Instruction given to Lackfords on or prior to the date such increase takes effect. Except as stated aforesaid or otherwise set out in these Conditions, no other variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
7.5 Waiver. A waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy. A failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.
7.6 Severance.If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this Condition shall not affect the validity and enforceability of the rest of the Contract.
7.7. Lien. In the event that the Client fails to pay any amount due to Lackfords, Lackfords shall be entitled to exercise a lien over all documents, papers and correspondence it holds in connection with the Client’s business until payment by the Client of all sums due.
7.8 Intellectual property rights. All Intellectual Property Rights in or arising out of or in connection with the Services (other than Intellectual Property Rights in any materials provided by the Client) shall be owned by Lackfords.
(a) Any notice or other communication given to a party under or in connection with the Contract shall be in writing and shall be delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or sent by email to the address specified in the letter to which these Conditions relate.
(b) Any notice or communication shall be deemed to have been received:
(i) if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address;
(ii) if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting or at the time recorded by the delivery service; and
(iii) if sent by email, at the time of transmission, or, if this time falls after 5.00pm or on a day which is not a Business Day, on 9.00am on the next immediately following Business Day.
(c) This Condition does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any other method of dispute resolution.
7.10 Matter records. Lackfords has only limited storage facilities. Accordingly, upon conclusion of any matter, Lackfords reserves the right to destroy all records and documents, whether the property of the Client or not, after a period of six months from the file of Lackfords relating to that matter being closed. Lackfords shall have no liability for any loss arising out of any such destruction. At any time before the expiry of such six months period Lackfords shall, on receipt of a request from the Client, obtain a file from their archives for an administration fee of £20 plus VAT.
7.11 Third party rights.Unless it expressly states otherwise, the Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract; and the rights of the parties to rescind or vary the Contract are not subject to the consent of any other person.
7.12 Governing law. The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by, and construed in accordance with the law of England and Wales.
7.13 Jurisdiction.Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.