General Terms & Conditions of PAIR Finance GmbH
for contracts concluded via www.pairfinance.com
1. Nature of order, transfer of debt collection orders
- In accordance with the terms below, the client can authorise PAIR Finance GmbH (hereinafter PAIR Finance) with the collection of claims which are in arrears and, as a rule, previously undisputed (individual referred to as “debt collection orders”). The content of a business relationship (“debt collection contract”) between the parties is based not only on these terms but also on the “Service Description” appendix, both of these also become constituent parts of a debt collection contract. A debt collection contract only comes into effect when confirmed by PAIR Finance.
- The client transfers the data, information and documents required for debt collection via a technical interface, by uploading them to PAIR Finance’s online system or via the secure e-mail address email@example.com. PAIR Finance will not accept orders which require the handover of paper documents.
- A single debt collection order only comes into effect when it is confirmed by PAIR Finance or with the issue of a debt collection reference which the client can view in the PAIR Finance online system.
2. Processing of the order
- Once the order is handed over, PAIR Finance checks whether the debtor is a client of PAIR Finance (conflict of interests).
- PAIR Finance will carry out the collection of the claim properly, taking economic viability into consideration and with its own due discretion in line with its obligations, while exercising due commercial diligence and in accordance with the professional guidelines of the Bundesverbandes Deutscher Inkasso-Unternehmen e. V. (Federal Association of German Debt Collection Companies).
- As a rule, PAIR Finance claims from debtors the main debt, plus interest and reminder costs and fees for debt collection, solicitors, courts, court officers, investigation and registration, plus expenses relating to default expenses incurred by the client.
- If PAIR Finance has debt collection orders from multiple clients for the same debtor, the client agrees that the debt collection orders will be processed in the order they are received by PAIR Finance; it also agrees that the findings obtained during the processing of its claim can be used in the processing of other orders, providing this is authorised under data protection laws and it does not compromise the client’s interests.
- At its own discretion and in accordance with its obligations, PAIR Finance is entitled to reach payment agreements, offer extensions and, in order to achieve a payment, offer discounts on the claim to a maximum of 25 % of the main claim, or a maximum of 50 % of the overall claim (main and subsidiary claims) within the monitoring process.
- PAIR Finance is authorised to use external companies to fulfil its obligations arising from this contract. This does not affect the rights and obligations agreed between PAIR Finance and the client.
- PAIR Finance is authorised to reject orders without citing reasons or to discontinue the debt collection process. The order for each claim accepted is completed when the claim is settled (full/part payment, full/part waiver), the claim is deemed unrecoverable in accordance with the “Service Description” appendix or PAIR Finance deems, based on its due discretion, that there is no prospect of success in the recovery process.
- PAIR Finance provides access to an online system where the client can view the current status. On request, the client can be provided with information by telephone on a one-off basis. If the client wishes to receive additional regular status reports, the nature and content of these must be agreed separately in writing between PAIR Finance and the client. PAIR Finance is entitled to charge extra for this.
3. Cooperation with solicitors
- If legal proceedings are required in order to assert a claim, PAIR Finance is authorised to hand the claim over to a solicitor. PAIR Finance ensures that the the solicitor will hand the claim back to PAIR Finance for further recovery once a legal ruling has been reached.
- The solicitor authorised is selected by PAIR Finance based on its due discretion unless the client has specified a solicitor of its own. PAIR Finance authorises solicitors in the name of and on behalf of the client, with the client relationship always between the client and the solicitor.
- As a rule, PAIR Finance communicates directly with the solicitor with the authorisation of the client. In all cases, the client authorises the solicitor at this stage, and absolves them of their duty of confidentiality in that it can share correspondence, reports and, where applicable, billing with PAIR Finance.
- The payment of the solicitor, if appointed by PAIR Finance, is based on the Lawyers Remuneration Act (Rechtsanwaltsvergütungsgesetz, RVG) or a separate payment agreement in the event of legal representation outside of Germany. The solicitor generally invoices PAIR Finance directly, specifying the client as the service recipient.
4. Original documents and right of retention
- PAIR Finance can scan in original documents, store electronic copies and destroy the originals, providing they do not need to be kept by law or for the fulfilment of the contract. The client undertakes not to publish the documents which are not kept in original form and additional data obtained during processing, unless this is an absolute necessity for future processing.
- In all other cases, PAIR Finance may destroy the documents once the order is complete and if the client has not responded to a request to take back the documents within six months. Irrespective of any request to take back the documents, PAIR Finance can destroy them after 5 years.
- If PAIR Finance is not satisfied with its debt collection payment and expenditure, PAIR Finance can refuse to issue documents, providing the withholding of individual or all documents is not unreasonable in the circumstances.
5. Client’s obligations
- The client may not hand over claims for recovery which expire in less than 6 months or which have already expired, if insolvency proceedings have been initiated against the debtor or rejected for lack of assets or there is the prospect of such proceedings (request for itemisation of debts, section 305 II InsO (German Insolvency Code), or if the debtor is deceased or has moved to an unknown address abroad.
- The client may not hand over claims for recovery which have previously been handled by third parties or which are not legally justified, especially those which are illegal or unenforceable.
- After issuing the order, the client must provide PAIR Finance with all data pertinent to the recovery of the claim, the information required to comply with statutory information obligations (e.g. section 11a Legal Services Act (Rechtsdienstleistungsgesetz, RDG) and the laws on money laundering. For the collection of claims with an enforcement order, the original enforcement order and any enforcement documents must also be provided. The client must provide PAIR Finance with due authority to carry out the order.
- On request, the client must also provide all further information relating to the claim which could improve the prospects of successful processing. The client must inform PAIR Finance immediately of any incoming payments from the debtor, further correspondence, other events affecting the claim (especially return of goods) and all other changes to their master data (especially address, bank details and contact person responsible).
- The client must reimburse PAIR Finance the damages incurred by handing over unjustified claims or by providing information which is incorrect, incomplete or overdue. At its own discretion, PAIR Finance will take the necessary legal measures to defend against demands from third parties. When first requested to do so, the client will absolve PAIR Finance from the costs of defending against third-party demands.
- Once the order is placed with PAIR Finance, in order to avoid parallel processing, the client will not attempt to pursue the claim either itself or through an authorised representative (e.g. debt collection agency, solicitor) or negotiate about the claim with the debtor, in particular it may not reach a payment agreement with the debtor. If it becomes necessary for the client to negotiate directly about the claim, it must obtain PAIR Finance’s consent in advance.
- The client must provide PAIR Finance with due support in the event of a claim for fulfilment rather than the transfer of damages due to default. In particular, the client agrees that information obtained during processing can be used for this purpose.
6. Remuneration, reimbursement of expenses, advances, commission
- PAIR Finance agrees a debt collection payment with the client for each individual order by application of the RVG, with the exception of the ban on performance-related debt collection payment.
- The client reimburses PAIR Finance for external costs incurred and paid in advance. PAIR Finance is authorised to ask the client for an advance for the sum of the proposal expenses to be incurred or to retain incoming debtor payments as an advance in this respect.
- The debt collection payment owed by the client, the expenses and any solicitors’ fees incurred are always charged to the debtor as compensation for default to the client.
- The client transfers its right to compensation for the debt collection payment relative to the respective debtor to PAIR Finance as it arises for processing. If, despite all contractual efforts, the debt collection payment for PAIR Finance is not reimbursed as default compensation by the debtor, then the client instead waives its entitlement to default compensation against the debtor for the amount of the debt collection payment which is not covered by the payments from the debtor to PAIR Finance in fulfilment. PAIR Finance accepts the transfers effected. The client is aware that PAIR Finance can pursue the transferred claim further in its own name.
- If commission is agreed, the client is obliged to pay commission on payments from the debtor, even if paid by third parties with the effect of discharging the debt. The commission is due at the point the payment is made against the claim.
- In all cases, the client still owes the commission up to two years after conclusion of the debt collection contract, if the activity of PAIR Finance played a role in the fulfilment of the claim and the payment is made to PAIR Finance.
7. Statement, payment
- Unless agreed otherwise with a debtor, partial or full payments made to PAIR Finance by debtors are set off in accordance with the statutory regulations.
- Unless agreed otherwise between PAIR Finance and the client, payments against a single claim are initially used to cover expenses incurred (court costs, execution costs, etc.) and then to cover the due payments or advances incurred for this claim, then for the payment of interest and finally for the payment of the primary claim. Any payments from third parties direct to the client, indemnities, counter-sales, return of goods, claim waivers, etc. are deemed as payments against the claim and must be taken into consideration in the statement.
- PAIR Finance charges its services to the client on a monthly basis, for the previous month to the 20th of the following month.
- If the account is in credit (external funds), this is generally paid to the client within 14 days of the statement being sent.
- If no complaint is received about the statement by the end of the month following the sending of the statement, the client is deemed to have accepted it is correct.
- If payments are made to PAIR Finance above the level of the relevant claim (overpayments), PAIR Finance will set these off against other claims handed over by the client, provide this is possible in line with the statutory provisions. Otherwise, the client agrees that PAIR Finance repays the monies to the debtor in line with its due discretion. If the person entitled to receive the monies cannot be traced after a year despite reasonable efforts, the client waives its entitlement to payment.
- The client may only set off its own claims against PAIR Finance claims if the claims from the client are undisputed or established in law.
8. Completion of order, termination of debt collection contract
- The debt collection order ends when the total claim against the debtor is paid, by (partial) waiver or set-off if the (remaining) claim is irrecoverable in accordance with the definition in the “Service Description”, or on termination.
- The debt collection contract is concluded for an indefinite period. Either party can terminate the contract by giving 3 months notice to the end of the month. Termination must be in writing.
- PAIR Finance is authorised to extraordinary termination if the client does not provide the requisite information or documents or the client negotiates independently with the debtor or takes other measures which mean that the claim cannot be processed further as a result.
- This does not affect the right to terminate for good cause.
- If the contract is terminated by the client, PAIR Finance will continue to process all debt collection orders transferred which have not yet been completed in line with the contract, even beyond the date that the contract ends, unless this activity is specifically terminated as well. The termination of the debt collection contract and/or the debt collection order does not cancel PAIR Finance’s entitlement to a debt collection payment.
9. Data protection
- PAIR Finance will handle the data and documents stored in line with the debt recovery process based on the principles of proper data security and the provisions of GDPR and the German Federal Data Protection Act (BDSG). Employees of PAIR Finance involved in the debt recovery are obliged to comply with data confidentiality. The client assures that the personal data handed over to PAIR Finance for debt collection purposes has been properly handled in accordance with the provisions of GDPR and BDSG.
- PAIR Finance fulfils its obligations independently with respect art. 4, clause 7 GDPR. In order to fulfil the contract, PAIR Finance is authorised to enter into subcontractor relationships. PAIR Finance ensures that all subcontractors undertake to comply with the relevant data protection laws.
- Unless agreed otherwise, PAIR Finance is authorised to disclose credit-related information to credit agencies, provided this is authorised under data protection laws.
- PAIR Finance is liable in the event of malicious intent and gross negligence, and for the behaviour of legal representatives and vicarious agents which can be attributed to PAIR Finance. PAIR Finance is only liable for minor negligence in the event of a culpable infringement of a substantial contractual obligation. Liability is limited to compensation for typical, predictable damage. PAIR Finance is always liable for damage arising from physical injury to life or limb or damage to health resulting from negligent infringement of obligations or malicious or negligent infringement of obligations by a legal representative or vicarious agent.
- All contractual claims against PAIR Finance expire no later than 12 months after conclusion of the contract, providing the client was aware or must have been aware of the circumstances on which the claim is based at this point.
- PAIR Finance is not liable for the expiry of claims, if there is no enforcement order because of general or individual provisions from the client. For claims which, by mutual agreement between the parties, are only to be covered using out-of-court methods, there are effectively no checks on expiry. There are no checks on expiry for subsidiary claims. To avoid enforcement or execution costs, PAIR Finance is not obliged to prevent the expiry of interest on arrears.
- PAIR Finance is only liable for the expiry of claims if the relevant debt collection order was received at least 6 months prior to expiry or the client explicitly informed it that expiry is imminent, at least eight weeks away, when the order was placed and it was possible for PAIR Finance to carry out checks on expiry based on the data or documents handed over.
11. Final terms
- There are no verbal auxiliary agreements. Any changes to this contract must be in writing in order to be valid, including any amendment to the requirement for the written form (unless a stricter form is required by law).
- In the event of changes to the legislation with a ruling from the supreme court (e.g. statutory cap on cost reimbursement, increase in court/solicitor/legal enforcement costs), PAIR Finance is authorised to adjust the debt collection payments or services accordingly, providing the changes have a significant impact on the execution of the contract. PAIR Finance will inform the client of the change and that, in the absence of an objection to the applicability of the changes, it will come into effect no later than 14 days from when the notice was received.
- This contract is governed by the law of the Federal Republic of Germany to the exclusion of the provision of international private law.
- The place of fulfilment and exclusive place of jurisdiction for all disputes about rights and obligations arising from this contract is Berlin, providing this is authorised by law.
- If individual terms of this contract are or become partially or fully void or invalid, this does not affect the validity of the remaining terms. The invalid or unused terms are replaced by statutory law. In addition, the parties will reach an effective regulation to replace the invalid or void term which comes as close as economically possible to the original term, providing additional interpretation of the contract is not possible by preference.