General Terms and Conditions
1. Scope of application
1.1 The following General Terms and Conditions (“GTC”) apply exclusively to business relations concluded with clients via the websites of eCollect AG (“eCollect”), Neuhofstrasse 21, 6340 Baar, Zug, Switzerland. Deviating terms and conditions shall not be recognised unless eCollect expressly agrees to their validity in writing.
1.2 The services of eCollect are aimed exclusively at entrepreneurs. Clients which are natural persons must have full legal capacity and be of legal age. When the client is registering as a legal entity, the power of attorney for the conclusion of corresponding transactions must be available.
2.1 Any client who does not purchase the services of eCollect acting as a consumer, may register via the eCollect websites and apply for the opening of an eCollect-Account in order to use the services described in these GTC.
2.3 In order to activate the eCollect-Account, the client must complete the registration form and provide information, including data required for personal identification, about itself or its representatives, beneficial owners or control holders as well as its business activities. The client assures that all information is correct, accurate, up-to-date and complete.
2.4 The client shall keep the respective details up to date at all times and shall immediately indicate any changes or deviations in his eCollect-Account.
2.5. eCollect is obliged to establish the identity of the client. The eCollect-Account shall be made available to the client only in case all necessary information has been submitted and checked and approved by eCollect.
2.6 In the event of an incomplete registration or in the event of implausible or incorrect information, eCollect reserves the right to refuse the registration of a client, to cancel it immediately or to delete the client’s eCollect-Account after a reasonable period of time as well as to refuse its services.
2.7 At any time during the use of eCollect’s services, further information may be requested from the client in order to verify its identity or that of its representatives, the economic ownership or control of the business, to validate subsequently submitted information and to assess the risk associated with the contractual relationship.
3. Ordering of services
3.1 The statements and explanations on the websites of eCollect represent a non-binding description of services.
3.2 By submitting the claims, the client declares a binding order (offer) to eCollect to carry out a collection procedure with regard to the submitted claim.
3.3. eCollect accepts the client’s offer with the first action relating to the fulfilment of the order. eCollect is entitled to refuse the conclusion of the contract without giving reasons. In addition, eCollect has the right to refuse the collection of claims due to the claims arising from unjustified transactions, due to the claims being statute-barred, incomplete or immoral or for other reasons within 21 days of the submission of the claim. The rejection of the order shall be at the discretion of eCollect and the client shall not be entitled to any claims arising therefrom.
3.4 If eCollect uses third parties to perform the agreed services, they shall not become contractual partners of the client.
4. eCollect’s services
4.1. eCollect shall collect, by itself or through designated third parties, claims of the client in compliance with the relevant statutory provisions, in accordance with these General Terms and Conditions and at its dutiful discretion by means of the economically justifiable and lawful debt collection measures available at its disposal.
4.2. eCollect shall perform the pre-judicial / extra-judicial collection of untitled private law claims in Switzerland and abroad which, at the time of their submission, are undisputed, substantively justified and no longer dependent on counter-claims (pre-judicial / extra-judicial collection).
4.3. eCollect shall initiate judicial legal proceedings at its own expense and at its own discretion, in accordance with the respective national law, and shall apply for any debt collection or enforcement measures to be ordered, if necessary in cooperation with an external professional chosen by eCollect (legal debt collection).
4.4. eCollect is responsible for the monitoring and recovery of titled claims (monitoring procedures).
4.5 eCollect shall decide whether and which measures are to be taken at its own discretion and in accordance with the relevant national statutory provisions.
4.6 The client shall have access to a web application as well as to various software interfaces (APIs) in order to be able to constantly monitor the progress of the debt collection. The client shall inspect his eCollect account at least once a week, e.g. in order to process queries from eCollect employees, to transmit additional necessary information or data, to take note of information on the collection of individual claims or to comment on any settlement arrangements offered.
4.7. eCollect shall hold the collected receivables in trust until they are paid out to the client.
4.8 The provision of other services (in particular Invoice2Cash) can additionally be contractually agreed.
5. Assurance and obligations of the client
5.1 The client shall only transfer to eCollect claims that are undisputed, substantively justified and no longer dependent on counter-claims at the time of the transfer.
5.2 The contractual relationship shall be exclusive with regard to the individual claims transferred.
5.3 With the transfer of the individual claims, the client grants eCollect the authorisation to collect these claims from the respective customer.
5.4 With the transfer of the individual claims, the client grants all necessary powers of attorney for the collection of the claim. eCollect asserts the respective claim in the name of the client and is only entitled to receive payments owed to the client (power of attorney for collection and power of attorney to receive funds).
5.5 The client shall provide eCollect with all documents required for the collection of claims. This includes information about the customer (name, gender, address, contact data, bank data, consumer or entrepreneur capacity), the subject matter of the contract, the amount, entitlement and origin of the claim and, if applicable, the course of the previous collection of the claim. Further information, in particular information required by law, will be provided by the client upon request without undue delay, but no later than 7 days after sending the request.
5.6 The client shall transmit the required customer, claim and master data for the collection of the claim by suitable means, e.g. via a secure software interface (API). eCollect shall provide an interface for this purpose together with documentation and precise data record descriptions.
5.7 The client shall forward to eCollect any correspondence with customers received after the submission of the claim immediately, but no later than 72 hours after receipt of the correspondence.
5.8 The client shall inform eCollect of all payments made directly to it by the customer immediately, but no later than 72 hours after receipt of the payment.
5.9 After the submission of claims to eCollect, the client, itself or through third parties, shall not actively communicate with customers with regard to the submitted claim.
5.10. Furthermore, the client shall not enter into any agreements with customers regarding payment or instalment payments with regard to the submitted claims.
5.11. The client agrees that the data transmitted by him to eCollect for the collection of the claim as well as the data obtained by eCollect during its processing may be forwarded to external contractors (e.g. contract lawyers, collection agencies, service providers for data processing) in compliance with applicable data protection regulations. Such external contractors are entitled to access the aforementioned data - insofar as this is necessary - when processing the claims. The client further agrees that any further data obtained by the external contractor through and within the scope of necessary processing may be transferred to eCollect. In this respect, the client releases the external contractor and its employees from any obligation of professional secrecy.
6. Debt collection
6.1 eCollect is entitled, within the framework of the collection of claims, to arrange for the validation and enrichment of customer data, including address and contact data, as well as the collection of credit rating information in compliance with data protection regulations, depending on the status of the claims and at its own discretion. The client shall provide all declarations required under data protection regulations.
6.2 Subject to any other agreement, the collection of claims shall initially be performed by way of pre-judicial / extra-judicial collection proceedings in the following form and at eCollect’s own legal discretion:
a. The principal claim and any existing additional charges (reminder costs, chargeback fees, expenses, etc.) shall be asserted by eCollect, in accordance with the respective national statutory provisions, in writing or in text form against the customer. Furthermore, in accordance with these General Terms and Conditions and applicable statutory provisions, eCollect shall claim from the customer any default interest incurred at the statutory rate as well as, at its own discretion, the remuneration, costs and expenses, which arise with the progress of the proceedings.
b. The following further measures will be initiated by eCollect depending on the individual case: Transmission of further payment requests to the customer at various dunning or escalation levels via various communication channels; conduct of personal interviews with the customer (field service); processing of customer telephone calls; correspondence with the customer or the customer’s representatives, and other third parties; obtain and dispatch of documents requested by the customer (copies of invoices, contract copies, title copies, etc.); conclusion of instalment and/or deferment agreements as well as their monitoring in accordance with the following provisions of these GTC; clarification of disputes of the customer in cooperation and, if necessary, in coordination with the client.
c. At the same time, eCollect manages client and customer accounts as well as the regular accounting with the client.
6.3 If the pre-judicial / extra-judicial collection procedure does not lead to the recovery of the asserted claims in the individual case, eCollect shall then initiate the legal collection procedure (i.e. depending on the national law, the legal collection or court proceedings) at its own expense, insofar as eCollect considers this to be economically reasonable.
6.4 Should the involvement of a lawyer become necessary in the respective judicial proceedings, eCollect shall transfer of the mandate to contract lawyers selected by eCollect in those cases in which, at eCollects discretion, this appears to be economically reasonable. Upon request, the client shall grant the commissioned lawyer the necessary powers of attorney.
6.5 After the conclusion of any litigation proceedings, eCollect shall initiate the enforcement of any successful court orders and shall apply for the necessary enforcement or execution measures, if eCollect deems this to be economically reasonable.
6.6 Legally titled claims for which there are currently no reasonable prospects of realisation, shall be taken over by eCollect into the monitoring procedure. There are currently no sufficient realisation possibilities available, if: according to information already available or information obtained execution measures do not offer any prospect of success; the execution against the movable assets of the customer has remained wholly or partially fruitless; further execution measures currently do not offer any prospect of success or no further, short-term realisation possibilities are discernible from the financial circumstances resulting from the asset information. As part of the monitoring procedure, the customer is monitored over a long period and regular contact is made with the customer in order to collect the claim.
6.7 In the event of the customer’s proven inability to pay and in the event of lost legal proceedings, eCollect shall be entitled to close the case and cancel the claim or, at its own discretion, take measures to further collect the claim. Furthermore, eCollect is not obliged to pursue irrecoverable claims against insolvent customers in any way. eCollect will coordinate such cases separately with the client.
6.8 The client acknowledges that eCollect is not obliged to initiate judicial or criminal proceedings against customers.
7. Recall and cancellation of claims
7.1 In principle, the client is not permitted to recall submitted claims whose processing by eCollect has already begun.
7.2 The client shall inform eCollect without undue delay, if it subsequently becomes aware that a claim cannot be successfully collected.
7.3 If the client explicitly insists on recalling a claim, e.g. due to erroneous transfer of the claim, other agreement with the customer, direct payment of the claim to the client, eCollect shall be entitled to invoice the client for the costs according to Section 9.2.
7.4 If after initiation of the collection process eCollect finds out or is informed by the client that a claim is unfounded - including, but not limited to the event of revocation or withdrawal from the contract by the customer, an originally ineffectively concluded contract, settlement of or dispute of the claim prior to submission to eCollect, no default of the customer, termination of the contract, eCollect shall immediately cancel the respective claim without incurring any costs, unless this circumstance already existed at the time of submission and the timely knowledge of it was within the client’s sphere of influence or it should have expected it. In such cases, eCollect reserves the right to charge the client for the full amount of the costs pursuant to Section 9.2.
7.5 If, in other cases, the client or eCollect subsequently becomes aware of a reason why a claim cannot be successfully collected, such as, in particular, time-barred claim, insignificant claim, death of the customer, minority of the customer, existence of a criminal offence, e.g. misuse of bank or credit card data, eCollect shall also cancel the respective claim without incurring costs, unless this circumstance already existed at the time of submission and the timely knowledge of it was within the client’s sphere of influence or it should have expected it. In such cases, eCollect reserves the right to charge the client for the full amount of the costs according to item 9.2.
8. Allocation of payments and accounting of collected funds
8.1 In the relationship between the parties, all payments received in the overall collection process shall first be offset against 1. the principal claim, 2. the additional charges of the client, 3. the collection fees according to item 9.2 (including default interest on the principal claim) and 4. other expenses of eCollect.
8.2 All payments made by the customer from the time of the first contact by eCollect, irrespective of the way in which this took place, shall be deemed payments within the meaning of Section 8.1. This includes all payments by the customer, in particular direct payments to the client, credit notes of the client on the transferred claim as well as offset amounts accepted by the client with any other counterclaim of the customer.
8.3 Upon completion of the registration and activation of the eCollect-Account by the client, a credit account will be opened for the client at https://manage.ecollect.org. The credit account serves for the accounting and payment of the realised claims to the client. The existence of the credit account does not give rise to any additional costs for the client.
8.4 The funds collected from the principal claim and the additional charges of the client are booked to its credit account and represent the credit on the account. Via online access, the client may at any time take note of incoming and outgoing payments and arrange for payouts to be made to a bank account deposited by him. The credit balance is reduced accordingly with each payout.
8.5 The following items shall be entered in the credit account of the client:
- Final balance of cleared claims (File Statement balance) - Transfers to the credit account of the client from cleared claims. Such transfers occur due to a claim being cleared by eCollect, from which any advance payments already made are to be deducted;
- Partial payments (Instalment carryover) - transfers to the client’s credit account from received partial or instalment payments, advance payments are accurate calculations at the time of transfer of the client’s share of received payments by the customer, which may change at any time in the course of further processing of the claim up to the final balance;
- Direct payments (Direct payment) - bookings for the allocation of the customer’s direct payments to the client;
- Credits (Credit) - reductions of the principal or additional charges by the client; offsetting of counter-claims;
- Payments to the client (Creditor payout) - Payments from the eCollect credit account to the bank account specified by the client upon registration.
8.6. eCollect is entitled to set off claims against the client which are based on the claims asserted according to points 7.3, 7.4 and 7.5 against the credit balance of the client.
8.7 If the client violates one or more of the contractual obligations pursuant to Sections 5.5 to 5.10, eCollect reserves the right to impose the costs and expenses for each submitted claim and to set them off against the balance on its account.
9.1 The client shall be entitled to the (principal) claims and any additional charges submitted to eCollect, in the amount paid by the customer.
9.2. eCollect shall be entitled to all fees, expenses, other costs and default interest which exceed the principal claims and additional charges of the client and which are calculated in the collection procedure, unless the client has made an advance payment in this respect. The amount of the fees, expenses, other costs and default interest to be claimed by eCollect in the collection process from the client’s customers is based on the legal regulations applicable in the respective country of residence or the default residence of the customer.
9.3. eCollect shall receive a success commission of 100% of the default interest collected.
9.4 The fees, expenses and other costs incurred by eCollect in relation with its activities shall initially be borne by the client. However, these will be asserted against the customer. The client assigns to eCollect its right against the customer for reimbursement of all remuneration and costs incurred in connection with the collection of the claim in lieu of performance. The assignment shall be dissolved towards the customer once the reimbursement takes place. eCollect accepts the assignment.
9.5. eCollect is entitled to make a contractual agreement directly with the customer in its own name with regard to the reimbursement of costs. This also applies to any subcontractors of eCollect.
9.6 If eCollect has initiated measures at its own discretion that go beyond the extra-judicial collection of claims, the costs incurred in this respect shall be borne by eCollect. eCollect shall therefore be entitled to assert the lawyer’s fees against the customer in addition to the client’s claims and to have these fees reimbursed.
9.7 If, contrary to eCollect’s decision, the client insists on measures going beyond the extra-judicial collection procedure, all costs incurred in this respect shall be borne by the client.
9.8 With regard to any remuneration and costs in the event of termination, the provisions of Section 13 shall apply.
9.9 Other costs or remuneration claims may arise from additional agreements between the parties.
10. Settlement, deferment, instalment payment, discounts
10.1. eCollect is entitled, at its dutiful discretion and taking into account the interests of the client, to independently conclude deferral or instalment payment agreements with customers, insofar as this appears appropriate in the individual case.
10.2 The parties shall mutually agree whether and to what extent discounts on principal claims may be granted by eCollect in individual cases. Discounts on collection costs shall be granted unilaterally at the discretion of eCollect.
10.3 If a number of individual claims resulting from one and the same or comparable legal grounds are submitted, the parties shall agree on the amount of possible discounts.
10.4 The parties shall also agree on the handling of eCollect’s fees and costs with regard to settlement agreements. The client may determine the type and amount of permissible settlement agreements. In the case of settlement the fees of eCollect shall be reduced in proportion to the reduction of the principal claim, unless otherwise agreed.
10.5. eCollect shall inform the client about customer offers during settlement negotiations and coordinate these with the client.
11.1. eCollect shall not be liable for the feasibility of the claims submitted.
11.2. eCollect shall not be responsible for examining the statute of limitations and shall not be liable for the occurring statute of limitations of individual claims submitted by the client.
11.3. eCollect excludes liability for slightly negligent breaches of duty, insofar as these do not relate to essential contractual obligations, damages arising from injury to life, limb or health, or guarantees, or to claims based on other mandatory national circumstances of liability. The same applies to breaches of duty by eCollect’s agents. eCollect shall be liable for intent and gross negligence, including on the part of its agents, in accordance with the statutory provisions. The same applies to negligently caused damages resulting from injury to life, body or health. eCollect and its agents shall only be liable for damage to property and financial loss caused by negligence in the event of a breach of a substantial contractual obligation, but only to the extent of the damage foreseeable and typical for the contract at the time of conclusion of the contract. Essential contractual obligations are those whose fulfilment is characterised by the GTC and other associated agreements and on which the client may rely.
12. Inspection of claims and retention periods
12.1. eCollect shall provide the client with online access via a web application (https://manage.ecollect.org) and a software interface (API) to enable the client to constantly monitor the progress of the collection of the submitted claims and the current status of the collected or outstanding claims as well as access to the statements of all collected claims. In addition, it provides the client with various reports and statistics on the entire claims portfolio via a web application.
12.2. Even after the successful completion of the collection procedure, eCollect shall keep information regarding all claims including all data submitted and resulting from the collection process as well as accounting statements ready for retrieval by the client for the duration of statutory retention periods.
13. Contract term and termination
13.1 The contract is concluded for an indefinite period of time. Termination is possible for both parties with a notice period of three months to the end of the respective month.
13.2 The client retains full access to the web application (https://manage.ecollect.org) after termination of the contractual relationship as long as eCollect is still processing claims of the client. If customers make payments due to eCollect’s collection activities after termination of the contractual relationship, the provisions of the General Terms and Conditions regarding remuneration and accounting shall apply accordingly.
13.3 In the event of ordinary termination, eCollect shall remain entitled to continue to process already submitted claims for a period of time at its discretion in accordance with these terms and conditions.
13.4 Notice of termination may be given in text form by e-mail.
13.5 If the client insists on suspending the collection activities when the termination takes effect, the costs not yet paid by the customer as well as the remuneration, i.e. all claims, fees and expenses incurred by eCollect, are due immediately in full and payable by the client. eCollect declares, subject to a condition precedent, at this point in time, the reassignment of the right for reimbursement for costs not yet paid, insofar as its right for reimbursement against the customer was assigned in lieu of performance. Same applies to the other assignments in accordance with these GTC. If the balance of the client’s credit account is negative after the termination takes effect, eCollect will issue an invoice with a payment term of 14 days so that the client can balance out the credit account.
13.6 The above provision on the reimbursement of costs and payment of remuneration shall apply mutatis mutandis for the recall of individual claims in the case of an valid contract which has not been terminated, if more than 2% of the annual transfer volume (calculated on the basis of the average annual submission volume over the contract period up to the time of the recall) is recalled.
13.7 The right to extraordinary termination remains unaffected for both parties. In the event of an extraordinary termination, eCollect may nevertheless continue to collect the claims already submitted, unless eCollect is to blame for the termination and a continuation of the cooperation would thus run counter to the interests of the client. In this case the cooperation will be terminated without incurring costs.
14. Confidentiality and data protection
14.1 Both eCollect and the client undertake to treat as confidential all information and documents which are accessible in connection with the establishment of the business relationship and its execution and which are described as confidential or are clearly recognisable as business or trade secrets under other circumstances, and not to record them, pass them on or exploit them, unless this is necessary to achieve the purpose of the contract.
14.2 Both parties shall maintain confidentiality about all legal relationships, their contents and other confidential information for an unlimited period even after termination of the business relationship.
14.4 In addition, the client assures that it is legally entitled to transfer to third parties the personal data transmitted within the scope of the debt collection.
14.5 The employees involved in debt collection are obliged in writing to comply with the provisions of data protection regulations and to maintain telecommunications, banking and general business secrecy. For its part, eCollect is responsible for compliance with the statutory data protection regulations.
14.6 The client agrees that eCollect may transfer personal data to its subsidiaries and other external subcontractors commissioned by it for the purpose of executing business transactions and debt collection or grant them access to such data and commission the respective data processing insofar as this serves to fulfil the contractual obligations of eCollect. In doing so, eCollect shall obligate the respective subcontractor in writing to comply with the applicable data protection regulations and to maintain telecommunications, banking and general business secrecy.
14.7. eCollect may, if necessary and in compliance with the relevant statutory provisions, request relevant data for debt collection from credit -rating agencies and forward data resulting from the claim to credit-rating agencies.
14.8 If changes to data protection regulations or regulatory directives require other procedures, the above provisions shall be adapted in accordance with the respective requirements.
14.9 Insofar as claims against one customer are submitted for processing by several clients, the client agrees that the customer data obtained shall continue to be used in accordance with the above provisions.
15.1. eCollect is entitled to make use of its subsidiaries at its own expense and on its own responsibility in order to fulfil its contractual obligations.
15.2. eCollect has the right to use other external subcontractors for the fulfilment of its contractual obligations at its own expense and responsibility.
15.3 The rights and obligations of eCollect and the client existing under the GTC shall not be affected thereby.
16. Final provisions
16.1 The client hereby agrees that eCollect may transfer the legal relationship with all rights and obligations to a third party at its own discretion. In such a case, the client will be informed accordingly.
16.2 If a customer complains about the client or eCollect to authorities, the public or other bodies or announces its intention to do so, the contracting parties undertake to provide immediate mutual information and support.
16.3 Amendments or supplements to these GTC must be made in writing or in text form. These will be communicated to the client by post or e-mail. If the client does not object within four weeks after receipt of the notification, the changes shall be deemed accepted by the client.
16.4 Should individual provisions of these GTC prove to be invalid, void or unenforceable or become invalid, void or unenforceable, this shall not affect the validity of the GTC as a whole. In this case, the parties shall replace the invalid, void or unenforceable provision with a provision that comes closest to the intended purpose in a legally permissible manner.
Last updated:January 30, 2019