Darcey Quigley & Co Ltd's General terms and Conditions

This Contract is made up of the Quote and the Conditions.

IT IS AGREED as follows:

1 INTERPRETATION

1.1 Definitions:

“Business Day” means a day other than a Saturday, Sunday or public holiday in Scotland, when banks in Edinburgh are open for business.

“Charges” means the charges payable by the Customer for the supply of the Services by DQ, as set out in the Quote.

“Conditions” means these terms and conditions.

“Contract” means the contract between the Customer and DQ for the supply of the Services comprising these Conditions and the Quote.

“Customer” means the customer identified in the Quote and to whom these Conditions apply.

“Customer Materials” means all materials, including documents, invoices, and debtor communications supplied by the Customer to DQ.

“Data Protection Legislation” means all applicable data protection and privacy legislation in force from time to time in the UK including the UK GDPR; the Data Protection Act 2018 (DPA 2018) (and regulations made thereunder); the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended.

“Debt” means the debt owed to the Customer as specified in the Quote which DQ has been engaged to recover.

“Debtor” means the debtor of the Customer identified in the Quote that the Debt is owed by.

“DQ” means Darcey Quigley & Co Ltd, a company registered in Scotland, having its registered office at International House Stanley Boulevard, Hamilton Technology Park, Glasgow, G72 0BN with company registration number SC315880.

“Quote” means the written quote issued by DQ which specifies the Customer, Debtor, Debt and Charges.

“Services” means the debt recovery services, to be provided by DQ pursuant to the Contract, to obtain payment for the Debt.

“Shared Personal Data” means personal data relating to the Debtor that is shared between the parties for the purpose of DQ providing the Services.

2 COMMENCEMENT AND TERM

The Contract shall commence on the date the Customer accepts the Quote, and DQ shall have no duty to provide the Services until the Quote has been accepted.

3 SUPPLY OF SERVICES

3.1 Where DQ opts to perform the Services, it shall do so to a reasonable and professional standard.

3.2 DQ provides no warranty, express or implied, that the Services will be successful in whole or in part.

3.3 DQ shall have sole discretion whether to perform the Services at any time.

3.4 DQ shall be entitled to rely on information and instructions issued to it by any employee, director, agent or contractor of the Customer who does so.

3.5 Where DQ obtains payment from the Debtor in full or partial satisfaction of the Debt, it shall remit the full or partial Debt payment less any Charges which are due in accordance with these Conditions.

4 CUSTOMER’S OBLIGATIONS

4.1 The Customer shall:

4.1.1 co-operate with DQ in all matters relating to the Services;

4.1.2 provide, for DQ, its agents, subcontractors, consultants and employees, in a timely manner and at no charge, all information and documentation reasonably required by DQ including but not limited to:

(a) all relevant background information relating to the Debt;

(b) known financial, business or other relevant circumstances of the Debtor;

(c) copies of all correspondence, invoices, contracts or other documentation relating to the Debt;

(d) all reasonably known means of contacting the Debtor available to the Customer.

4.1.3 inform DQ without delay if it becomes aware of any new circumstances or information, however arising, that may impact on DQ’s ability to perform the Services, including any known disputes, proceedings or negotiations involving the Debtor.

4.2 The Customer shall not:

4.2.1 from the date that the Customer accepts the Quote, pursue the Debt itself or engage with the Debtor in any material way to discuss recovery of the Debt, and shall direct the Customer to engage with DQ on all matters relating to the Debt;

4.2.2 accept any payment in whole or in part relating to the Debt; or

4.2.3 engage any other person to pursue payment of the Debt without the written consent of DQ.

4.3 The Customer shall be liable to pay the Charges in full if it breaches any of the terms of clause 4.2.

4.4 If DQ’s performance of its obligations under the Contract is prevented or delayed by any act or omission of the Customer, its agents, subcontractors, consultants or employees, DQ shall:

4.4.1 not be liable for any costs, charges or losses sustained or incurred by the Customer that arise directly or indirectly from such prevention or delay;

4.4.2 be entitled to recover any additional costs, charges or losses DQ sustains or incurs that arise directly or indirectly from such prevention or delay.

4.5 The Customer shall not at any time, now or in the future, use DQ’s name, trade marks or goodwill to attempt to recover payment for any debt for which DQ has not been formally engaged to recover. If the Customer makes or attempts to make any such use of DQ’s name, trade marks or goodwill, the Customer shall be liable to pay 25% of the outstanding debt value.

5 DATA PROTECTION

5.1 Each party acknowledges that they will regularly disclose to the other party Shared Personal Data collected by that party for the purpose of DQ providing the Services.

5.2 The parties acknowledge that for the purpose of the Data Protection Legislation, each party is an independent controller.

5.3 Each party shall at all times comply with the Data Protection Legislation in respect of the Shared Personal Data and any breach by a party shall, if not remedied within 30 days of receiving notice to do so, give grounds to the other party to terminate the Contract with immediate effect.

5.4 In relation to the Shared Personal Data, each party shall:

5.4.1 ensure that it has all necessary notices, consents and lawful bases in place to enable lawful transfer of the Shared Personal Data;

5.4.2 give such information as may be required by the Data Protection Legislation to any data subject whose personal data may be processed under the Contract where required to do so.

5.4.3 process the Shared Personal Data only purpose of complying with its obligations under the Contract;

5.4.4 not transfer any personal data received from the other party outside the UK unless it is necessary to do so and all procedures and safeguards required by the Data Protection Legislation have been established.

5.5 Each party shall provide to the other party all reasonable assistance necessary to the allow the other party to comply with its obligations under the Data Protection Legislation in relation to the Shared Personal Data.

5.6 The Customer shall indemnify DQ against all liabilities, costs, expenses, damages and losses (including reasonable legal costs) suffered or incurred by DQ arising out of or in connection with any breach of the Data Protection Legislation by the Customer, its employees or agents, provided that DQ provides prompt notice, and reasonable assistance in dealing with any claim that arises under this indemnity.

6 CHARGES AND PAYMENT

6.1 Where any up-front Charges are specified in the Quote, the Customer shall pay such Charges within 7 (seven) days of accepting the Quote.

6.2 Upon completion of the Services resulting in full or partial payment of the Debt, DQ shall remit to the Customer the amounts recovered, less the Charges in accordance with this clause 6. For the avoidance of doubt, where any late payment fees, interest or other charges due on the Debt cannot be recovered by DQ, DQ’s Charges shall not be reduced by those amounts.

6.3 If, for any reason, any part of the Charges is not deducted from amounts remitted to the Customer under clause 6.2, Customer shall be liable to pay any remaining Charges to DQ within 7 (seven) days of being issued with an invoice detailing the remaining Charges.

6.4 Customer is liable for all reasonably incurred costs, expenses and bank charges incurred by DQ in processing payments in performance of the Services and such amounts shall form part of the Charges.

6.5 All amounts payable by the Customer exclude amounts in respect of value added tax (VAT), which the Customer shall additionally be liable to pay to DQ at the prevailing rate (if applicable), subject to receipt of a valid VAT invoice.

6.6 If the Customer fails to make any payment due to DQ under the Contract by the due date for payment, then, without limiting DQ’s remedies under clause 8 (Termination), the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause will accrue each day at 4% a year above the Bank of England’s base rate from time to time, but at 4% a year for any period when that base rate is below 0%.

6.7 All amounts due under the Contract from the Customer to DQ shall be paid by in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).

7 LIMITATION OF LIABILITY

7.1 References to liability in this clause 7 include every kind of liability arising under or in connection with the Contract including but not limited to liability in contract, delict (including negligence), misrepresentation, restitution or otherwise.

7.2 Nothing in the Contract limits any liability which cannot legally be limited, including liability for:

7.2.1 death or personal injury caused by negligence;

7.2.2 fraud or fraudulent misrepresentation; and

7.2.3 breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).

7.3 Subject to clause 7.2 (Liabilities which cannot legally be limited), this clause 7.3 sets out the types of loss that are wholly excluded:

7.3.1 loss of profits;

7.3.2 loss of sales or business;

7.3.3 loss of agreements or contracts;

7.3.4 loss of anticipated savings;

7.3.5 loss of use or corruption of software, data or information;

7.3.6 loss of or damage to goodwill; and

7.3.7 indirect or consequential loss.

7.4 Subject to clause 7.2 (Liabilities which cannot legally be limited), DQ’s total liability to the Customer for all other loss or damage shall not exceed the Charges payable by the Customer under the Contract.

8 TERMINATION

8.1 Without affecting any other right or remedy available to it, DQ may terminate the Contract with immediate effect by giving written notice to the Customer if:

8.1.1 the Customer commits a material breach of any term of the Contract which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so;

8.1.2 the Customer accepts any form of payment in full or partial satisfaction of the Debt in breach of clause 4.2;

8.1.3 DQ becomes aware of any circumstances which ought to have been known to the Customer and which, in DQ’s reasonable opinion, means there is a poor likelihood of being able to obtain any payment from the Debtor or otherwise perform the Services;

8.1.4 the Customer suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or

8.1.5 the Customer’s financial position deteriorates to such an extent that in the DQ’s opinion the Customer’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.

8.2 On termination of the Contract for whatever reason:

8.2.1 the Customer shall immediately pay to DQ all of DQ’s outstanding unpaid Charges, invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, DQ may submit an invoice, which shall be payable immediately on receipt;

8.2.2 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; and

8.2.3 termination or expiry of the Contract shall not affect any of the rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry.

8.3 In addition, if DQ terminates the contract pursuant to clauses 8.1.1 to 8.1.3, all Charges shall become due.

9 GENERAL

9.1 Assignation and other dealings.

9.1.1 The Customer shall not assign, transfer, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract without DQ’s prior written consent.

9.1.2 DQ may at any time assign, transfer, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights under the Contract.

9.2 Confidentiality.

9.2.1 Each party undertakes that it shall not at any time during the Contract, and for a period of two years after termination of the Contract, disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party except as permitted by clause 9.2.

9.2.2 Each party may disclose the other party’s confidential information:

(a) to its employees, officers, representatives, contractors, subcontractors or advisers who need to know such information for the purposes of carrying out the party’s obligations under the Contract. Each party shall ensure that its employees, officers, representatives, contractors, subcontractors or advisers to whom it discloses the other party’s confidential information comply with this clause 9.2; and

(b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.

9.2.3 Neither party shall use any other party’s confidential information for any purpose other than to perform its obligations under the Contract.

9.3 Variation. No variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).

9.4 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 Scotland.

9.5 Jurisdiction. Each party irrevocably agrees that the courts of Scotland 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.