1.1 These General Terms and Conditions (hereinafter referred to as “T&C“) apply to the instruction (“Instruction”) of us, the
represented by the managing directors Martin Göb and Marius Dresen
(registered in the Commercial Register at the Local Court of Cologne…),
e-mail address: firstname.lastname@example.org
(hereinafter referred to as “Xclaim“)
by you as an entity or individual being affected by the obligation to pay truck toll in Germany (hereinafter: “Client“; together with Xclaim “Parties”). The Instruction refers to the services offered by Xclaim under the brand name “TollReclaim” at www.tollreclaimgermany.de with regard to the refund of the share of the truck toll that is unlawfully collected by the Federal Republic of Germany.
1.2 These T&C conclusively govern the Instruction and apply exclusively. General terms and conditions of the Client or third parties shall not become part of the Instruction unless expressly agreed by Xclaim.
2.1 Xclaim undertakes to enforce claims for refund of overpaid truck toll in Germany pursuant to the BFStrMG and the BGebG (hereinafter: “Claim“) for its Clients.
2.2 The background to this is that the European Court of Justice (“ECJ“) ruled on October 28, 2020 that the calculation of the truck toll by the Federal Republic of Germany is incorrect (https://eur-lex.europa.eu/legal-content/DE/TXT/HTML/?uri=CELEX:62019CJ0321&from=EN). The ECJ held i.a. that costs for traffic police should not have been included in the truck toll. Accordingly, affected companies may claim refund of overpaid truck tolls from the Federal Republic of Germany (hereinafter referred to as the “Defendant“).
2.3 Via its “TollReclaim” brand (available at www.tollreclaimgermany.de), Xclaim provides a registration portal where entities and individuals affected can register and instruct Xclaim to enforce their Claim.
2.4 For this purpose, the Client authorizes Xclaim, as well as its managing directors personally, to bring the Claim against the Defendant on his behalf in accordance with § 164 of the German Civil Code (BGB). For this purpose, the Client enters into an agency agreement with Xclaim for the enforcement of the Claim. The Instruction, however, is not concluded until Xclaim has reviewed the registration and documents provided and has sent a confirmation to the Client. The subject of the Instruction is the enforcement of the Claim against the Defendant. Xclaim does not guarantee that the Defendant will approve the Claim and/or refund the overpaid toll.
2.5 Xclaim is entitled to a commission for its services in accordance with section 4 of the present T&C.
2.6 Xclaim acts as a legal service provider, which is why Xclaim is only permitted to act on behalf of the Client in extrajudicial and delinquency proceedings. Should Xclaim’s efforts to enforce the Claims not suffice, Xclaim is authorized to instruct a lawyer cooperating with Xclaim (“Partner Attorney“) with the enforcement of the Claims, if necessary also in court.
2.7 The Client agrees that in case of an instruction of a Partner Attorney, Xclaim is authorized to grant the Partner Attorney access to all information available and relevant to the case, and that the Partner Attorney is authorized to inform Xclaim about the proceedings. If additional documents, such as a certificate of authenticity, power of attorney, statement of truth or similar, are required in relation to a court proceeding, the Client agrees to provide such documents on request and in the required form.
2.8 If according to the Partner Attorney’s assessment the chances of success are low, Xclaim informs the Client accordingly and neither Xclaim nor the Partner Attorney takes further steps to enforce the Claim. In this case, the Client does not incur any costs for the service performed by Xclaim up to this point.
2.9 If the Partner Attorney initiates legal proceedings to enforce the Claim which is eventually unsuccessful, Xclaim bears all costs incurred up to this point. If the court proceeding is successful or a settlement is reached, Xclaim further bears all costs incurred which may have not been settled by the Defendant. If a court proceeding is successful, a claim for refund of court costs and attorney’s fees will be brought against the Defendant on behalf of the Client.
2.10 Xclaim does not provide any legal service or advice beyond that which is necessary to enforce the Claims.
3.1 The conclusion of an out-of-court or court settlement requires the Client’s prior consent.
3.2 If Xclaim and the Client agree to conclude a settlement, Xclaim also bears the costs arising from the conclusion of the settlement. The calculation of Xclaim’s fee will be based on the actual amount of refund paid by the Defendant to the Client and the provisions of section 4.2 of these T&C.
3.3 If a judicial or extrajudicial settlement is reached by the Client without Xclaim’s knowledge or consent, the Client must bear the costs potentially incurred for Xclaim due to the instruction of the Partner Attorneys. Furthermore, Xclaim reserves the right to calculate the fee on the settlement amount and to assert further claims.
4.1 For its services, Xclaim is entitled to charge a provision in the amount of the percentage of the refund received from the Defendant (hereinafter: “Commission“), including statutory VAT, as specified in section 4.2 of these T&C. Once the Defendant has made a payment to Xclaim, Xclaim will pay to the Client the amount paid by the Defendant less the Commission to an account specified by the Client.
4.2 The Commission retained by Xclaim in the event of a payout by the Defendant will be calculated based on the following ratio:
4.3 The Commission will only be due if Xclaim receives a refund from the Defendant. Xclaim itself does not assume any obligation to pay these amounts to the Client – this means that the Client will not receive any refund if the Defendant refuses to pay despite the efforts of Xclaim and, if applicable, assigned Partner Attorneys. In this case, the Client is not obliged to pay any Commission to Xclaim.
4.4 Any interest or other fees that may be incurred in addition to the refund owed by the Defendant will be the sole responsibility of Xclaim.
5.1 Any payments made by the Defendant or a third party in relation to the Claim will be processed through a business account of Xclaim.
5.2 Xclaim will promptly process and pay the refund to the Client upon notification of a valid bank account (less the Commission as specified under section 4 of the T&C). The Client is obliged to provide Xclaim with a valid bank account to which a SEPA transfer can be made. If the Client does not comply with this obligation or does not inform Xclaim of a change in his bank details, the Client is obliged to reimburse Xclaim for any damage resulting thereof (e.g. return debit fees, etc.).
5.3 The account is non-interest bearing. Interest claims of the Client are therefore excluded, provided that the payment is made immediately after receipt of the refund by the Defendant.
6.1 The Client is obliged to use the services offered by Xclaim exclusively for the purposes of the Instruction.
6.2 The Client agrees to provide all information truthfully and completely. In particular, the Client will provide Xclaim with all documents and data relevant to the enforcement of the Claim. In the event of a culpable breach of this obligation, Xclaim may demand compensation from the Client, in particular for lawyer’s fees, court costs and processing costs incurred in vain. The Client is solely responsible for the accuracy and completeness of the information and data provided. The Client agrees to provide any supplementary information, if required, without delay upon Xclaim’s request. Any changes in address data must be communicated to Xclaim without undue delay.
6.3 The Client undertakes to inform Xclaim immediately if any payments have been made to the Client by the Defendant in respect of the Claim.
6.4 The Client confirms that he has not yet otherwise disposed of the Claim and has not instructed a third party to enforce such Claim. The Client also confirms that all information provided is correct and comprehensive. The Client further undertakes, after commissioning Xclaim, to assign or pledge the Claim to third parties with Xclaim’s consent, not to conduct any actions or proceedings of his own, and not to make any legally binding declarations, in particular to the Defendant. If the Defendant or its representative contacts the Client, the Client will notify Xclaim immediately.
6.5 If the Client violates its obligations under sections 6.1. to 6.4., the Client is fully liable for potential damages. Xclaim reserves the right to assert further claims.
7.1 The Instruction of Xclaim ends when the refund has been enforced by Xclaim or Xclaim has determined, at its due discretion, that the Claim is futile and has informed the Client accordingly. An ordinary termination is excluded – subject to other provisions of these T&C. The right to extraordinary termination (§ 314 BGB) remains unaffected.
7.2 In particular, Xclaim reserves the right to terminate the Instruction if the Client culpably violates the duties and obligations as defined in Section 6 of these T&C.
7.3 Should the Instruction be terminated after commissioning due to the conditions of section 7.2. in conjunction with section 6, the Client is obliged to compensate Xclaim for reasonable damages. However, the Client reserves the right to prove that no damage was incurred or that the damage was significantly lower.
8.1 Xclaim does not guarantee accuracy and completeness of the data and information provided by the Client.
8.2 Claims of the Client for damages are excluded except for claims for damages arising from injury to life, body, health or from the breach of essential contractual obligations (fundamental obligations), as well as liability for other damages based on an intentional or grossly negligent breach of duty by Xclaim, its legal representatives or vicarious agents.
8.3 Fundamental contractual obligations are all obligations whose fulfillment enables the proper execution of this Instruction, on whose compliance the Client may regularly rely and whose violation jeopardizes the achievement of the purpose of the Instruction.
8.4 In the event of a breach of fundamental contractual obligations, Xclaim shall only be liable for the foreseeable damage typical for the Instruction if such damage was caused by simple negligence, unless the Client’s claims for damages arise from injury to life, body or health.
8.5. The limitations of sections 8.1 to 8.4 also apply in favor of Xclaim’s legal representatives and vicarious agents, if claims are brought directly against them.
The respective data protection provisions applicable can be accessed at www.tollreclaimgermany.com/datenschutz.
10.1 Xclaim reserves the right to amend, supplement or declare invalid the T&C at any time and without any duty to provide reasons for this.
10.2 Any changes to the T&C will be communicated to the Client by e-mail. In the event of changes to the T&C , the amended T&C will be deemed accepted if the Client does not object to the amended T&C within a period of six weeks.
Xclaim is exclusively active as a registered service provider within the meaning of the Legal Services Act (Rechtsdienstleistungsgesetz). Xclaim is registered in the Legal Services Register (Rechtsdienstleistungsregister ) under number 3712-1057(7).
12.1 If and to the extent necessary and possible, the Parties agree that the applicable law is exclusively the law of the Federal Republic of Germany thereby excluding all other international legal regimes.
12.2 The place of jurisdiction shall be Cologne, Federal Republic of Germany, if and to the extent that a choice of jurisdiction is permissible. Otherwise, the applicable statutory provisions shall apply to the local jurisdiction.
12.3 Should any clause of the Instructions and these T&C be invalid, it shall be assumed that the Instructions would also have been concluded without this clause. In the event of invalidity, the Parties undertake to immediately agree in writing on a valid clause that corresponds as far as possible to the content of the invalid clause and comes as close as possible to the economic interests of the Parties.
Status: May 2021
– The Management –