In this Agreement, “CDRS”, “we”, “our” and “us” mean Incorp Pty Ltd (ACN 005 979 224) trading as Commercial Debt Recovery Solutions and “you” means you whether in your personal capacity or as an authorised representative on behalf of another person, business or entity.
In this Agreement, the following definitions apply unless the context requires otherwise:
(a) Agreement means the Application Form submitted by you and accepted by CDRS together with these Terms;
(b) Application Form has the meaning given in clause 2;
(c) Business Day means a day that is not a Saturday, Sunday, bank holiday or public holiday in Victoria;
(d) CDRS Litigation Procedure Brochure means the brochure provided by us to you in relation to litigation which sets out the following:
(i) terms and conditions of proceeding with litigation;
(ii) applicable Commission chargeable by CDRS if you instruct us to proceed with litigation;
(iii) litigation fee payable to solicitors; and
(iv) an Authority to Proceed form;
(e) Commission means the commission rates that CDRS is entitled to charge you (including GST) for the Services in respect of the Debt as provided on our Website http://www.debtrecovery.com.au/commission-rates/ as amended by us at our discretion from time to time;
(f) Confidential Information means:
(i) any information whether or not in a material form that directly or indirectly relates to the business, services and/or products of either party and its clients, customers and suppliers including information relating to any patents (actual or pending), trade secrets, formulas, designs, accounts, marketing plans, sales plans, prospects, research, management information systems, computer systems, processes and any data base, data surveys, clients, customers, suppliers, client lists, distribution lists, customer lists, specifications, drawings, records, reports, software or other documents, whether in writing or otherwise concerning each of the parties or any of its clients, customers or suppliers;
(ii) any other information or know-how whether or not in a material form that relates to the business of either party which the other party becomes aware of either before or during the period of this Agreement, or generates in the course of, or in connection with, the carrying out of either party’s obligations under this Agreement; and
(iii) any other information relating to either party;
which information is not in the public domain;
(g) Debt means the agreed value of a debt (inclusive of GST) owed to you by the Debtor as set out in the Application Form;
(h) Debtor means the person, business or entity which owes the Debt to you as set out in the Application Form;
(i) Disbursements means any third party costs or expenses incurred by us in connection with the provision of the Services to you;
(j) Insolvency Event means, in relation to a person, any of the following events:
(i) the person, being an individual:
(A) becomes a bankrupt under the Bankruptcy Act 1996 (Cth);
(B) executes an authority under section 188 of the Bankruptcy Act 1966 (Cth);
(C) is served with a bankruptcy notice or a creditors petition under the Bankruptcy Act 1966 (Cth); or
(D) enters into a personal insolvency agreement under Part X of the Bankruptcy Act 1966 (Cth)
(ii) the person, being a company:
(A) is, or is or may be deemed within the meaning of any applicable law to be, insolvent or unable to pay its debts;
(B) is served with a statutory demand under sections 459E or 459F of the Corporations Act 2001 (Cth) and is taken to have failed to comply with that statutory demand;
(C) has a receiver, controller (within the meaning of section 9 of the Corporations Act 2001 (Cth)) or analogous person appointed to, or the holder of a security interest in respect of, it takes possession of all, or any part of, its assets;
(D) becomes an externally administered body corporate within the meaning of the Corporations Act 2001 (Cth) (including, but not limited to, under Part 5.3A of Chapter 5) or steps are taken which could be expected to result in it becoming so subject; or
(E) is the subject of a court order or a resolution for its winding up;
(iii) the person is involved in any litigation relating to the Debt; or
(iv) any step or steps are taken which could be expected to result in any of the above.
(k) Legal Fees means legal fees or expenses and third party costs, as set out in the CDRS Litigation Procedure Brochure that may become due to the solicitors that you instruct us to engage and instruct on your behalf should you provide us with authorisation to proceed with legal proceedings to recover the Debt;
(l) Services means debt recovery services to recover debts on your behalf from your Debtors, but excludes any litigation services;
(m) Tax Invoice means an invoice and an accompanying statement issued by us to you in respect of the Services which lists out the Commission charged on the sum of Debt recovered for the preceding fortnight and any payable Disbursements and shortfall in respect of a Debt;
(n) Terms means this Terms and Conditions of trade; and
(o) Website means http://www.debtrecovery.com.au.
2. Your acceptance
By clicking and declaring that you (whether in your personal capacity or as an authorised representative on behalf of another person, business or entity) accept these terms and conditions when you submit a “Lodge a Debt Recovery Job” form (Application Form) via the “Lodge a Debt Recovery Job” link available on our Website, you agree that you are subject to and bound by the following Terms.
3. Appointment as your agent
(a) By submitting one or more Application Forms to us and accepting these Terms, you appoint and authorise us as your agent and we, acting as such, agree to provide the Services in accordance with these Terms.
(b) For clarity, by acting as your agent, we are only acting on behalf of you (a principal) to recover debt from a Debtor and no debt owed to you by any Debtor is assigned to us.
(c) We reserve the right to refuse to act as your agent against any Debtor any may at any time cease to act for you in relation to any one or more Debts.
(d) As part of our Services, we will conduct telephone demands, instruct field agents, provide written demand upon your debtors, locate debtors and any other business activities as needed from time to time.
(e) With respect to any Disbursements incurred, you authorise us to pay the Disbursements on your behalf without the need to obtain further consent from you for an amount not exceeding $150 (GST exclusive) in respect of a Debt. For any amount exceeding $150 (GST exclusive) in respect of a Debt, we will obtain prior approval from you before incurring such Disbursements.
(f) By appointing us as your agent, you also authorise us to accept payments from your Debtors on your behalf and bank into our trust account.
4. Your warranties
You warrant and covenant to CDRS that:
(g) you understand that CDRS is not part of Carew Counsel Pty Ltd;
(h) if you are submitting an Application Form on behalf of another person, business or entity, you are authorised to do so;
(i) CDRS is the exclusive provider of the Services with respect to the Debt for the term of this Agreement;
(j) the Debtor is not suffering an Insolvency Event;
(k) all details and information which you provide to us are true and correct and include all information relevant to the Debt;
(l) CDRS has your express consent to accept an offer by the Debtor to pay the Debt by instalments over a period of time, not exceeding twelve months (without obtaining consent from you to agree to this payment arrangement); and
(m) you will not interfere with or impede the provision of the Services by CDRS;
(n) you will not act in any manner which may compromise CDRS’s name and reputation.
5. Your obligations
In addition to your other obligations set out in the Agreement, you will:
(a) notify us immediately if any of the Debtor or its representative makes contact with you;
(b) not contact the Debtor directly without first notifying us;
(c) notify us within one Business Day of a Debt being paid to you, whether in part of in whole and whether paid directly by the Debtor or on behalf of the Debtor;
(d) not negotiate, settle or otherwise compromise any Debt without first notifying us in writing;
(e) notify us of any change to the balance outstanding on any Debt;
(f) notify us immediately if there is any change to your contact and bank accounts details; and
(g) maintain accurate records in relation to all Debts and the amounts repaid in relation to those Debts and provide us with such records upon our reasonable request.
6. Access to information
For the provision of the Services to you, you authorise and consent to the release of any information which we seek form any bank or financial institution.
(a) For the purpose of proceeding with litigation in respect of a Debt or a Debtor, you expressly authorise us to:
(i) conduct necessary searches or inquiries; and
(ii) engage and instruct solicitors at our discretion from our panel for legal and enforcement action. We reserve the right to change solicitor when we deem required.
(b) Prior to commencing any legal action in respect of a Debt or a Debtor, we will provide you with a CDRS Litigation Procedure Brochure and obtain approval from you to proceed with the legal action.
(c) If any legal proceedings are defended by a Debtor or its representative, you warrant that you will assist with the legal proceeding including making yourself available for any hearing or proceedings that are set down.
(d) You acknowledge that any legal proceedings will be brought in your name.
8. Commission and payment
(a) In consideration for the Services, you agree to pay us the Commission and Disbursements.
(b) The Commission charged will be determined based on the prevailing commission rate at the date when you submit the Application Form and does not include Disbursements or Legal Fees which you are liable to pay in addition to the Commission.
(c) The Commission will apply for all of the following circumstances from the commencement of this Agreement in respect of a Debt:
(i) on all payments received by us, our agents, solicitors or representatives at any time (including Debts received up to 120 days after termination of this Agreement); and
(ii) on all payments received by you, your agents, solicitors or representatives or insurers during the term of this Agreement and for 120 days after the end of this Agreement
(d) If you:
(i) are paid a Debt in whole or in part whether directly by the Debtor or on behalf of the Debtor;
(ii) accept a return of goods, offset or credit in satisfaction of a Debt; or
(iii) breach your obligations as set out in clause 5,
we will still be entitled to charge you Commission based on the agreed Debt in the Application Form upon receipt of such payment or acceptance by you.
(e) Each fortnight, we will provide you with a Tax Invoice. At this time we will pay you the total amount recovered (once cleared in our bank account) during that fortnight period in respect of all Debts after deducting the amount stated on that Tax Invoice (including GST). If the amount in the Tax Invoice is larger than the amount of Debt recovered from the Debtor, you must pay the shortfall as stated in the Tax Invoice within 14 days of its date.
(f) Any Commission or Disbursement payable by you to CDRS as a result of you receiving payment of the Debt (or part thereof) directly from the Debtor or its representative, will become due within 14 days of the date of the Tax Invoice.
(g) You agree we may set-off monies due to you with monies we reasonably believe you owe us in respect of all of your Debts.
(a) Should you fail to pay us the amounts as set out in a Tax Invoice, CDRS, its agents or solicitors will have the right to do one or more of the following actions:
(i) charge you interest on any overdue amount, being the penalty interest rate under the Penalty Interest Rate Act 1983 (Vic), from the due date until the date of payment;
(ii) terminate or suspend the provision of Services (including ceasing to instruct solicitors in any legal action) without notice; or
(iii) set-off monies due to you with monies you owe us in respect of all of your Debts. For clarity, you agree to provide us with indemnity in favour of us to pay all outstanding amounts owed to us by authorising us as trustee of the monies we hold on your behalf in our trust account to set-off any outstanding amount against any or all of the amounts recovered from your Debtors.
(b) In addition to clause 9(b), you will be liable for all legal costs and disbursements which may we may incur arising from the default calculated on the indemnity basis.
(a) Either of us may terminate this Agreement by providing the other party 30 days written notice.
(b) On termination, we are discharged from any further obligations under this Agreement other than those set out in clause 10(c).
(c) Upon termination of this Agreement:
(i) you must comply with your payment obligations set out in clause 8 in relation to Tax Invoices issued before and after termination; and
(ii) we will:
(A) return all Confidential Information reasonably requested in writing by you, within 30 days of receipt of your request, provided you pay our reasonable costs of returning that Confidential Information;
(B) perform our obligations under clause 8(e) as if the date of termination were the last day of the calendar month in which the termination notice was given; and
(C) comply with any procedural requirement in respect of any ongoing legal proceeding.
11. Our rights
(a) We will always retain the right to contact any of your Debtors at any time, even after the Services have been completed or the Debt has been withdrawn.
(b) We reserve the right to vary these Terms at any time and the applicable current Terms will be those disclosed on our Website and CDRS will be under no obligation to provide notice whenever there has been a change. Changes made shall relate to all Application Forms submitted by you from the date of change.
12. Confidential Information
A party may only disclose Confidential Information:
(a) if the information is in the public domain at the date of this Agreement or subsequently becomes in the public domain (other than as a result of a breach of a confidentiality obligation of a party under this Agreement or any other obligation of confidence);
(b) if the information is required by law or a regulatory body (including a relevant stock exchange); or
(c) to any other person who must know for the purposes of this Agreement on the basis that the person keeps the information confidential.
(b) As part of providing the Services to you, we might disclose personal information and sensitive information about the Debtors (or natural persons connected with the Debtors) to you. You agree that any information that we provide to you about the about the Debtors (or natural persons connected with the Debtors) must be used and handled by you in accordance with the Privacy Act and the Australian Privacy Principles.
(c) When you collect personal information and sensitive information about the Debtors (or natural persons connected with the Debtors) and disclose this information to us, you agree that you have complied with the Privacy Act and the Australian Privacy Principles.
14. Limitation of liability
(a) We shall not be bound by any other covenants, representations or warranties other than those specified in this Agreement.
(b) While CDRS does not purport to limit or otherwise affect the operation of State and Federal laws in Australia, you agree not to hold CDRS liable for any loss, damage or expense incurred (on either an express or an implied basis) from or by the acts of omissions of CDRS its employees, agents or solicitors whilst CDRS act in accordance with the Terms of this Agreement.
(c) To the extent that certain laws cannot be excluded, restricted or modified, these Terms must be read subject to any such laws. If such laws apply, then to the extent that CDRS is entitled to do so, its liability shall be limited, at its discretion, to:
(i) the supplying of the Services again; or
(ii) the payment of the cost of having the Services supplied again.
You indemnify us and our employees against all losses, damages, expenses and costs (on a full indemnity basis) that we or our employees may sustain or incur as a result, whether directly or indirectly, of:
(a) any breach by you of this Agreement;
(b) any misleading, false or insufficient details being supplied by you;
(c) any negligence or wilful misconduct by you; and
(d) any third party claim, except third party claims arising out of or relating to our negligence, or our breach of this Agreement.
(a) All notices given under these Terms must be hand delivered or sent by email or prepaid registered mail to the other party’s email address or postal address.
(b) A Notice given in accordance with clause 16(a) takes effect when taken to be received (or at a later time specified in the Notice), and is taken to be received:
(i) if hand delivered, on delivery;
(ii) if sent by regular post, six Business Days after the date of posting;
(iii) if sent by priority post, four Business Days after the date of posting;
(iv) if sent by post to or from a place outside Australia, ten Business Days after the date of posting; or
(v) if sent by email, when the sender’s email system confirms successful delivery of the Notice to the recipient’s server,
but if the delivery, receipt or transmission occurs on a day which is not a Business Day or occurs after 5.00 pm on a Business Day (both the day and the time being the place of receipt), the Notice is taken to be received at 9.00 am on the next Business Day.
You acknowledge and agree that CDRS can sub-contract the whole or any part of the Services.
Any indemnity or obligation of confidence under these Terms is independent and survives termination of this Agreement. Any other term by its nature intended to survive termination of this Agreement survives termination of this Agreement.
A party does not waive a right, power or remedy if it fails to exercise or delays in exercising the right, power or remedy. A single or partial exercise of a right, power or remedy does not prevent another or further exercise of that or another right, power or remedy. A waiver of a right, power or remedy must be in writing and signed by the party giving the waiver.
Each provision of these Terms is severable from the others and no severance of a provision will affect any other provision.
21. Entire Agreement
This Agreement constitutes the entire agreement between the parties in connection with its subject matter and supersedes all previous agreements, understandings or communications between the parties in connection with its subject matter.
22. Jurisdiction and law
These Terms are governed by and must be construed in accordance with the laws of the State of Victoria, Australia. You submit to the non-exclusive jurisdiction of the courts of that State and the Commonwealth of Australia in respect of all matters arising out of or relating to these Terms, their performance and subject matter.