1. OUR OBLIGATIONS AS YOUR AGENT
1.1 You appoint National Collection Services Pty Ltd ACN 165 965 873 as your agent to recover debts and/or goods that you refer to us for recovery from time to time (Debts). Specifically, you authorise us, and we agree, to provide Debt Recovery Services in accordance with this agreement. We will, as part of our services, conduct telephone demands, make written demand upon your debtors, instruct field agents, locate debtors and any other services agreed to on your behalf. You also authorise us to accept funds from your debtors (recovery sum) on your behalf and bank into our trust account. The appointment is a continuing appointment.
1.2 If we think it is unethical or uneconomical to pursue a debt, we may at any time by notifying you in writing or otherwise:
(a) Recommend that you cease recovery of the debt; and/or
(b) Suspend or stop performing Debt Recovery Services in relation to that debt (suspension).
1.3 We will, promptly every 15 calendar days, pay you the total amount recovered (once cleared in our bank account) during that 15 days in respect of all Debts (Recovery Sum) after deducting from each Recovery Sum part or all of any Fees and Additional Amounts (described in the Schedule of Fees). NCS is not under any obligation to verify that the above client bank account information supplied for EFT of debtor funds recovered is correct. You must notify us immediately if these details change.
1.4 As part of our Collection Services we may instruct a Solicitor from our panel with your approval. We will assist the Solicitor and undertake most of the administrative services required in the legal proceedings for the Solicitor. The Solicitor may pay us for the services we provide to the Solicitor. By entering into this agreement you acknowledge and agree to this arrangement. You provide us the authority to decide which panel Solicitor to use and reserve the right to change Solicitor when we deem required.
1.5 We will, as part of our services, perform telephone demands, letters of demand, instruct field agents and conduct other business activities as needed.
2. YOUR OBLIGATIONS
2.1 Not settle or otherwise compromise any debt without first notifying us in writing;
2.2 Notify us when you receive payment of any debt, whether in part of in whole;
2.3 Notify us immediately should the debtor make contact with you; and
2.4 Keep us regularly informed of any change to the balance outstanding on any debt; and
2.5 Maintain accurate records in relation to all debts and the amounts repaid in relation to those debts.
3.1 The attached Schedule of Fees states the amounts you are obliged to pay in relation to Debt Recovery Services.
3.2 Every 15 calendar days, we will provide you a Tax Invoice/Statement indicating the commission charged on the recovery sum for that period and any fees and additional amounts deducted in accordance with clause 1.3. All other fees and additional amounts incurred on your behalf will be invoiced by us as and when they arise. You must pay each invoice issued under this agreement within 14 days of its date. NCS reserves the right to close all files and charge commission on all debts should you fail to comply with the NCS terms and conditions of payment.
3.3 We may charge you interest on any overdue amount, calculated daily at the rate of 12% p.a, from the due date until the date of payment. We may also charge you a late payment fee of $25.00 for each month any amount is overdue.
3.4 You agree to grant a charge to NCS over all present and future interests in real property as security in the event of default of payment. You consent to a caveat being lodged against the title to any real present or future property interest for the protection of NCS and your indebtedness of these payment terms.
3.5 The total amount payable by you to us is the aggregate of the fees, additional amounts, interest if any under clause 3.3 and any amounts we incur on your behalf as your agent.
3.6 You agree to pay us a withdrawal fee if a previously referred Debt is withdrawn by you; or if this agreement is terminated either by us or you. The withdrawal fee is calculated as per the commission rate as listed in the schedule of fees on the amount of the Debt outstanding at the date of withdrawal or termination.
3.7 You agree to pay the costs and disbursements set out in the Schedule of Fees and commission on each Recovery Sum at the rate specified in this agreement. For the purposes of payment of commission, Recovery Sum will include amounts received by us or you if the matter settles on your instructions and the amount of any credit note provided to you or used by you in satisfaction or partial satisfaction of a Debt.
(a) May use Confidential Information solely to assist us in performing our obligations under this agreement;
(b) Except as permitted under clause 4.1(c), must maintain the confidentiality of the Confidential Information; and
(c) May disclose Confidential Information as required by law.
4.2 Clause 4.1 will cease to apply if the information ceases to be confidential (other than by our breach of this agreement).
5. LIMITATION OF LIABILITY
To the extent permitted by law, we limit our liability to you:
(a) In respect of each debt, subject to clause 5(b), to the fees paid or payable by you in relation to that debt; and
(b) For a breach of any condition or warranty implied by law, to the supplying again, or paying the cost of supplying again, the Debt Recovery Services in respect of which the breach occurred.
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) Ay negligence or wilful misconduct by you; and
(c) Any third party claim, except third party claims arising out of or relating to our negligence, or our breach of this agreement.
We may keep all documents and files in relation to debts in our possession or control until all fees and additional amounts payable by you under this agreement have been paid.
8.1 Either of us may terminate this agreement upon 30 days written notice to the other.
8.2 On termination, we are discharged from any further obligations under this agreement other than those specified in clause 8.3.
8.3 After termination but subject to clause 7:
(a) We will:
(i) 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; and
(ii) Perform our obligations under clause 1.3 as if the date of termination were the last day of the calendar month in which the termination notice was given; and
(b) you must comply with clause 3.2 in relation to Tax Invoices issued before and after termination.
8.4 This appointment is a continuing appointment and will automatically terminate after 5 years from the date of appointment unless terminated by us or you, whichever comes first.
9. ENTIRE AGREEMENT
This agreement constitutes the entire agreement between us in relation to its subject matter. No understanding, arrangement or provision not expressly set out in this agreement will bind either of us. Accordingly all correspondence, negotiations and other communications between us in relation to the subject matter of this agreement which precede this agreement as superseded by and merged in it.
10. CHANGES OF NAME OR TRADING STYLE
You agree to notify us immediately if you change your name, trading style or proprietorship from that which is specified on the front page of this agreement.
11.1 The failure by either of us at any time to enforce any of our powers, remedies or rights under this agreement will not constitute a waiver of those powers, remedies or rights or affect our rights to enforce those powers, remedies or rights at any time.
11.2 Any single or partial exercise of any power, remedy or right does not preclude any other for further exercise of it or the exercise of any other power, remedy or right under this agreement.
If any provision of this agreement is prohibited, invalid or unenforceable in any jurisdiction, that provision will, as to that jurisdiction, be ineffective to the extent of the prohibition, invalidity or unenforceability without invalidating the remaining provisions of this agreement or affecting the validity or enforceability of that provision in any other jurisdiction.
13. GOVERNING LAW
This agreement is governed by the law in force in Victoria, Australia.
14.2 We will use your personal information:
(a) To keep you informed about the progress of matters you have engaged us to handle on your behalf; and
(b) To pay you the recovery sum; and
(c) To inform you of new products and services that become available.
14.3 In keeping you informed of the progress of matters you have engaged us to handle, we might pass personal information about the debtor/s (or natural persons connected with the debtor/s) and this personal information might include sensitive information. Any information that we provide to you about the debtor/s (or natural persons connected with the debtor/s) must be used and handled by you strictly in accordance with the Privacy Act and the Australian Privacy Principles.