General Terms and Conditions of Business

 

1. Scope of Order

1.1 The contracting partner, Collectia GmbH, Brunnwiesenstr. 4, 94469 Deggendorf (hereafter referred to as the ‘contractor’) undertakes the litigation and judicial reminder process with power of attorney from the principal (hereafter referred to as the ‘principal’) for undisputed and non-judicial receivables due to the principal including all matters relating to enforcement / attachment orders of titled claims.

1.2 The collection mandate consists of the following activities of the CP whose form and extent of implementation is at the discretion of the contractor:

  • EDP supported claims accounting
  • transmission of information with regard to creditworthiness to credit information agencies so far as data protection permits at least 2 out-of-court debt collection reminders
  • telephone contact with the debtor should telephone number be known and determinable
  • enforcement of the legally permissible interest in arrears
  • collection of publicly accessible information on the debtor
  • collection of information from special databases
  • inquiries regarding unknown addresses of relocated debtors
  • initiation of criminal proceedings in cases of fraud
  • conduct the judicially automated reminder process if necessary with contract lawyers
  • Enforcement / attachment proceedings permitted within the scope of the RDG debt collection company
  • cooperation with lawyers, especially in the dispatch of extrajudicial payment reminders

1.3 The respective documentation such as contracts, invoices, correspondence wit the debtor are to be enclosed in copy with the order form (collection order). Should the placement of the order be conducted electronically then these documents are only required to be submitted on request.

 

2. Costs and Expenses

The following costs apply in addition to the statutory value added tax.

2.1 The collection contract concerns a business services contract in return for payment. The collection, reminder, accounting costs as well as expenses are due on placement of the order. These are then charged by the principal as costs of arrears as far as possible. The flat rate charge of EUR 15.00 plus statutory VAT applies is agreed only in cases of extrajudicial failure (should despite the correct processing of all the just and reasonable possible aspects of the claim are not able to be completed with the debtor out of court) provided the principal is a private individual. The contractor waives the charge of a flat rate for non-success normally charged to the principal for companies/entrepreneurs. The principal is charged for all expenses such as legal costs, legal enforcement costs etc. in every case. (Note exemption provisions in 2.6 and 2.7).

2.2 The contractor receives an additional remuneration amounting to the reminder costs and interest in arrears collected on successful conclusion of the matter plus the statutory value-added tax at the respective rate (currently 19 %).

A fee in respect of judicial failure is to be agreed separately depending on the amount of the principal claim and agreed with the principal in advance.

2.3 Should the debtor and the principal agree a settlement concluded by the contractor then the contractor is to charge settlement costs amounting to 10 % of the principal claim plus the statutory value-added tax at the respective rate (currently 19 %).

2.4 Disputed claims may not be processed by the contractor pursuant to the Legal Services Act. Should it become apparent during processing that the claim was disputed before the placement of the order and not reported by the principal then the contractor is to receive a flat rate collection fee from the principal amounting to 10 % of the principal claim plus the statutory value-added tax at the respective rate (currently 19 %).

2.5 Should it become apparent within the scope of the activities by the contractor that the claim assigned was unauthorized, already titled or was not possible to enforce before assignment due to insolvency proceedings, then the contractor is to charge the principal a flat rate collection fee amounting to 10 % of the principal claim plus the statutory value-added tax at the respective rate (currently 19 %).

2.6 Claims that are titled by the contractor as a consequence of collection proceedings in the judicial reminder process (default order, enforcement order) are accepted by the contractor after the first unsuccessful attempt at enforcement. Costs this first unsuccessful attempt at enforcement are charged to the principal. The contractor is to charge the principal an additional flat rate collection fee for post-judicial monitoring amounting to a success commission of 30 % on all payments received and relating to the principal claim plus an additional success commission amounting to the reminder costs and arrears of interest.

No further termination charges, costs or expenses are incurred by the principal in this regard. The contractor decides at their discretion which enforcement process is the most suitable in this regard. All costs stated are subject to statutory value-added tax at the respective rate (currently 19 %).

2.7 7 Claims already titled i.e. those where the principal effected title and assigned to the contractor may be processed by the contractor. The contractor is to charge the principal an additional flat rate collection fee amounting to a success commission of 50 % on all payments received and relating to the principal claim plus an additional success commission amounting to the reminder costs and arrears of interest. No further termination charges, costs or expenses are incurred by the principal in this regard. The contractor decides at their discretion which enforcement process is the most suitable in this regard. All costs stated are subject to statutory value-added tax at the respective rate (currently 19 %).

2.8 The following tariff schedule applies to the services of the contractor with expenses in each case unless otherwise stated and plus the applicable statutory value-added tax of currently 19%:

Termination due to legal decision (judicial): 15.00 EUR net plus statutory VAT = 17.85 EUR gross
Successful completion: Costs of payment reminders and interest on arrears, plus value-added tax
Successful fulfillment after completion of settlement: Costs of settlement amounting to 10% of the principal claim plus costs of payment reminders and interest on arrears, plus value-added tax
Completion on basis of a disputed claim: 10% of the principal claim plus value-added tax
Completion on basis of an unfounded claim: 10% of the principal claim plus value-added tax
Monitoring of a title arising from further processing after the first unsuccessful attempt at enforcement 30% of the principal claim, payment reminders and interest on arrears of the amount recovered as a success commission plus value-added tax, contractor incurs no post-litigation expenditure, with the exception of expenses incurred relating to the first unsuccessful attempt at enforcement
Acceptance of a claim with title 50% of the principal claim costs of payment reminders and interest on arrears of the amount recovered as a success commission plus value-added tax, contractor incurs no post-litigation expenses
 

2.9 The contractor is entitled to settle their own claims from the payments received from the debtor in the first instance and to deduct the corresponding amounts (see also § 367 German Civil Code).

2.10 Should there be prior termination or cancellation kindly refer to section 7 and the costs arising in this regard.

 

3. Pre-tax deduction authorization

The principal sets off any amounts of sales tax not collectable from the debtor arising from an existing pre-tax deduction authorization towards the contractor. The contractor is to issue an invoice in this regard.

 

4. Part Payments, Settlements

The contractor is entitled to permit part payments by the debtor and to submit proposals for settlement. Settlements may only be effected with the approval of the principal.

 

5. Cooperation with lawyers and credit information agencies

5.1 The principal mandates the contractor to transmit each individual case to the legal counsel of the contractor after issuing two debt collection reminders without effect in order to enforce the extrajudicial claims of the principal. The principal herewith grants the law firm of Swoboda & Partner, Albertstr. 8, 93047 Regensburg the respective power of attorney to issue an extrajudicial letter of reminder for this purpose.

5.2 The law firm of Dr. Florian Fritz, Brunnwiesenstr. 4, 94469 Deggendorf is mandated with the conduct of the legal proceedings as well as the reminder process within the framework of the enforcement process as the contractor is not authorized to so under the provisions of the Legal Services Act.

Should a part of the claim be received then the amount received is applied in first instance to the settlement of legal fees and expenses incurred. The mandated lawyer is authorized and obliged to conduct all correspondence and invoicing exclusively through the contractor.

5.3 Payments received or part payments are paid by the legal counsel through the contractor.

5.4 The legal counsel is released from the legal obligation of confidentiality towards the contractor and their employees. The legal counsel may revoke the release from confidentiality at any time.

5.5 The contractor conducts a credit assessment and research on addresses as part of the process. The contractor further complies with the completion requirements by concluding the extrajudicial process and reporting the outstanding balance of the claim held by the principal to SCHUFA Holding AG, Kormoranweg 5, 65201 Wiesbaden and/or Arvato Infoscore, Rheinstraße 99, 76532 Baden-Baden

 

6. Offset, Set off and waiver of the statute of limitations

6.1 Payments received from the debtor are firstly applied to set off all costs (such as collection costs, success commission,legal fees and expensesas well as costs of court bailiffs, investigation agency and official costs etc), then applied to interest and finally the principal amount claimed. Foreign currency amounts incurred in this regard are transacted through an internal foreign currency account that does not bear interest. The principal therefore has no interest claim on the contractor between receipt of the funds on the foreign currency account, invoicing and the transfer or payment to the contractor.

6.2 Provided the payment by the debtor is effected by direct debit and/or check then the foreign currency transaction is conducted after expiry of the six-week revocation period after account closure or the final credit to the bank account of the contractor at the earliest.

6.3 The principal waives the right of the statute of limitations on assignment of the order to the contractor with regard to collection costs, success commission, third party costs advanced as well as legal fees.

 

7. The user’s right to withdrawal

Right to withdrawal

You have the right to withdraw from this contract within 14 days without stating a reason.

This 14 day withdrawal period begins on the day on which the contract is concluded.

To use your right to withdrawal, you must inform us of your decision to withdraw from this contract via an unambiguous declaration (e.g. a letter sent by post, fax or email). Our details are: Collectia GmbH, Brunnwiesenstraße 4, 94469 Deggendorf, Tel: 0991/2962-900, Fax: 0991/2962-910, Email: info@collectia.de. You may use the attached withdrawal form template for this, however this is not compulsory. You can also complete and submit the withdrawal form template or a different unambiguous declaration on our website, www.pno-inkasso.de. If you do make use of this option, we will promptly send you confirmation of your withdrawal (e.g. by email).

If you have sent a message, before the 14 day deadline expires, declaring that you are using your right to withdrawal, this is sufficient to ensure your withdrawal is recognised.

Consequences of withdrawal

If you withdraw from this contract, we must reimburse you for all payments that we have received from you, including delivery costs (with the exception of additional costs charged for delivery options other than the cheapest standard delivery option we offer), promptly and at the latest within fourteen days from the day on which we receive your message declaring that you are withdrawing from the contract. We will use the same method of payment for this reimbursement as you used for the original transaction, unless it is expressly agreed otherwise with you; under no circumstances are you to be charged fees for this reimbursement.

If you have requested that the services should begin within the withdrawal period, you must pay us a reasonable sum, which corresponds to the proportion of the services that have been performed up until the time at> which you communicated your decision to use your right to withdraw from this contract to us, in relation to the full scope of services planned in the contract.

Withdrawal form template

(If you wish to withdraw from the contract, please fill out this form and return it.)

  • To Collectia GmbH, Brunnwiesenstraße 4, 94469 Deggendorf,
  • Fax: +49 (0)991/2962-910, Email: info@collectia.de
  • I/we (*) hereby cancel the contract that I/we (*) have entered into regarding the provision of the following services (*)
  • Ordered on (*)/received on (*)
  • User’s name
  • User’s address
  • User’s signature (only for notice given in paper form)
  • Date
 

´8. Termination or other cancellation of the order and the resulting associated costs

8.1 Every collection order may be terminated by the principal at any time.

8.2 Should termination or cancellation occur, in particular through waiver or settlement by the principal or third party without the agreement of the contractor then the contractor is to receive those costs from the principal that would have been paid on successful completion. The reference date for the calculation of the interest payable is the date of receipt of the termination notice or the date of waiver or settlement.

The termination or waiver does not apply when it is proven that at no time, even in the future, could there have been successful fulfillment or the principal terminates for good cause resulting from the contractor in person, their legal representative or agent. In these cases the contractor is remunerated in accordance with the Lawyer’s Compensation Act.

8.3 Should there be no response by the principal to the enquiries by the contractor within an appropriate period of time then the contractor may conclude the order terminate and charge all costs incurred (depending on the status of the process, refer to section 2 GTC) to the principal as if there had been a successful completion. The reference date is the date of issue of the termination by the contractor.

8.4 The duties of the contractor end with the complete satisfaction of the principal in respect of the principal claim, interest and costs including costs incurred by the contractor in the cause of their duties as well as when it is not possible to collect the claim.

8.5 Should the order be cancelled early by termination then the contractor is entitled to retain the original title until their costs are settled by the principal.

8.6 paragraph 8 of these Terms and Conditions does not apply in cases where the user withdraws from the agreement.

 

9. Duties of the Contractor

9.1 The contractor undertakes to confirm the acceptance of every order by the principal in writing or by issuing a debt collection file number through the online system. The order is otherwise considered as rejected after the expiry of a notice period of 10 working days. Checking, confirmation and processing of the order are to be concluded within three working days at the latest.

9.2 The contractor is to store and process the EDP data and documentation obtained in the course of the collection of the claim in accordance with the professional principles of of data protection and the provisions of the Federal Data Protection Act. Employees of the contractor charged with the collection of the claim are subject to the obligations of data secrecy in accordance with the Federal Data Protection Act. No data is to be transferred to third parties.

9.3 The contractor checks the acceptance of the order as to whether any conflict of interest exists requiring acceptance of the order to be rejected. This occurs when the debtor of the claim assigned is still an active customer of the contractor.

9.4 The contractor is to retain the files of closed orders for the period prescribed by law after which the file is sent for destruction. The principal is not advised of the destruction in advance. The contractor is entitled to use technical equipment suitable and admissible for archiving (optical archiving). The principal is entitled to request its transmission or dispatch in writing against reimbursement of a processing fee. The transmission occurs after expiry of the retention period but not before receipt of the processing fee.

9.5 The contractor undertakes to provide the principal with data on the respective status of the process by EDP.

 

10. Duties of the Principal

10.1 The principal is responsible for the legal validity of the collection of claims assigned and is liable for the consequences of incomplete or false information. The principal is liable for the risks regarding the transfer of data provided. In addition the principal ensures that the claim is due and the debtor is in arrears. Should this not be the case then the collection costs (see section 2 of the GTC) and the expenses may not be enforced as costs of arrears against the debtor but are to be invoiced to the principal for the full amount.

10.2 Payments by the debtor or other persons to the principal or other instances relating to the claim are to be notified to the contractor or the lawyer mandated with the case without delay. Considerable damage may occur to the debtor in the case of noncompliance. Noncompliance with this directive may cause unnecessary costs that may also be disadvantageous for the principal.

10.3 The claim may not be processed further during the period of the order by the principal and may not be transferred to any other entity (collection agency, lawyer, legal adviser etc.) for processing.

10.4 The principal is subject to the duty of discretion on being notified by the contractor and all notification on the debtor including third party debtors, is only intended for the principal. The principal may not inform third parties on such notifications and such notification is also not to be used as evidence in legal proceedings. The principal is liable for damages in cases of noncompliance. Written notifications remain the unalienable property of the contractor and are to be returned in original including any copies taken on request.

 

11. Liability and Limitations to Liability of the Contractor

11.1 The contractor is to conduct all orders to the best of their knowledge and belief and is not liable for the consequences of any decision made by the principal on the basis of false or flawed information. The contractor is not liable in particular for the consequences of the processing of flawed information.The contractor is not liable for simple negligence.

The liability of the contractor applies only in the event of an intentional or grossly negligent breach of duty by themselves or their legal representatives or agents. This does not apply in the case of harm to life, body and health.

11.2 Any claims regarding the aforementioned type expire within a limit of one year. The legal provisions otherwise apply in this regard.

11.3 Should an exceptional legal liability arise despite the agreed exemptions or limitations to liability then this is limited to a maximum amount of 250,000.00 EUR per liability case and restricted to a maximum of 1,000,000.00 EUR per calendar year.

 

12. General Obligations to Inform in the case of Consumer Dispute Resolution

12.1 The contractor will not take part in a dispute resolution process in line with § 36 of the Consumer Dispute Resolution Law (VSBG). There is no legal requirement in this regard.

12.2 Note on online dispute resolution in accordance with Art. 14 of the regulation on online dispute resolution: the EU Commission platform for online dispute resolution is available via the following link: www.ec.europa.eu/consumers/odr.

 

13. Special Agreements

Special agreements (collateral agreements), changes or amendments are required in writing to be effective. This applies in particular should the written requirement be waived. Agreements made by telephone are on-binding and require confirmation in writing.

 

14. Place of Fulfillment and Court of Jurisdiction

14.1 The place of fulfillment of all services by both parties and sole court of jurisdiction is Deggendorf, provided the contractor is a merchant, legal individual or separate estate under public law.

14.2 The entire contractual relationship is subject to German law independent of whether the contractor is subject to a separate legal jurisdiction.

 

15. Severability Clause

Should one of the provisions of these General Business Conditions be or become ineffective then the overall effectiveness of the remaining General Business Conditions is not affected. The contracting parties are to replace the ineffective provision with a legally admissible provision that appropriately satisfies the purpose intended by the ineffective provision.

Dated January 30th 2017