Terms and Conditions
1. Interpretation
In this Agreement the following terms shall have the following meanings:
1.1. “the Agreement” means and includes all the Terms and Conditions contained herein.
1.2. “the Company” means and includes Charter Mercantile Holdings Pty Ltd and its subsidiaries, including Entertainment Recoveries.
1.3. “the Client” means and includes the person, company, partnership or other entity whose details appear herein under the heading “Client Details”.
1.4. “the services” means and includes all work carried out by the Company for and on behalf of the Client including but not limited to conducting searches, field calls and skip tracing, issuing final notices and letters of demand, commencing and conducting proceedings in the name of the Client and all and any other work done from time to time for the purposes of assisting in and/or recovering or attempting to recover monies owing from time to the client by a Debtor.
1.5. “Debtor” means any person and/or corporation owing money to the Client
1.6. “GST” means any/all Goods and Services Tax payable pursuant to A New Tax System (Goods and Services Tax) Act 1999 - Australia. Any references to “GST” is only applicable for the Clients that operate in Australia, and this is clearly marked.
2. Receivables Management Services
2.1. The Company shall, as instructed from time to time by the Client, provide the Client with the services.
2.2. The Client authorises the Company to gain electronic access to the store membership records for the purpose of extracting information relating to any member who is a debtor. To facilitate the extraction of members’ data the Company will install (or provide for the Client to install) such computer software as is required.
2.3. The Client authorises the Company to send letters on its behalf, including the use of any and all related trademarks and logos, whereby it appears the letter is generated directly by the Client.
2.4. The Client authorises The Company to charge and collect on its behalf an administration fee, as allowable where the Client has a signed membership agreement with the debtor including a condition whereby additional collection costs are permissible.
2.5. The Client authorises the Company to engage a Legal Practitioner to commence such legal proceedings in the name of the Client as the Company deems necessary and/or desirable for the purposes of providing the services and to incur for and on behalf of the client legal costs and disbursements as agent for the Client.
2.6. The Client agrees to allow the Company to enter into negotiations with debtors on their behalf, and further authorise the Company to settle the debt for less than the total outstanding amount. Where a lesser amount is accepted as payment of the debt such lesser amount will include any prescribed administration fee.
2.7. The Client acknowledges that all disbursements will be made payable to the corporation noted under the heading “Client Details”.
2.8. Where you have not provided an ABN the Company will be required to withhold 49.5% of any amounts payable to you and remit these to the Australian Taxation Office. (Australian Clients Only)
3. Remuneration
3.1. From the moment a debt is referred, the Company shall be entitled to charge the Client for the provision of the services in accordance with the Schedule of Fees and Charges referred to herein together with all and any expenses, including but not limited to filing fees, service fees and like expenses incurred by the Company in providing the services, except where such commission and/or expenses are specifically excluded by this agreement.
3.2. The Client acknowledges that the Company will retain all fees and charges from any monies received on behalf of the Client (contra client) upon the production of a valid tax invoice showing the complete breakdown of any such fees and charges. Where there is insufficient funds held the Client agrees to remit payment to the Company within 21 days of the Company requesting payment.
3.3. The Client acknowledges that where legal professional services are provided for and on behalf of the Client and such services are not covered by and/or included in scales of fees prescribed from time to time the costs and disbursements incurred in the provision of those legal professional services shall be payable by the Client in addition to all and any other amounts payable by the Client.
3.4. The Client acknowledges that, where applicable, the percentage rate of commission specified in the Schedule of Fees and Charges shall be applied to all and any monies collected by the Company to a maximum of the amount owing by a Debtor together with all and any interest on the debt amount recovered by the Company.
3.5. If after referring an account to the Company for collection, the Client subsequently withdraws that account from the Company, settles the account direct with the Debtor and/or otherwise finalises such account the Company shall be entitled to payment of commission, costs and other remuneration as if the debt had been paid in full. For the purposes of this sub-clause any settlement of the debt by way of acceptance of return of goods to the client for credit or contra of accounts shall be deemed to be a payment by the Debtor of the value of such returned goods and/or contra and the Company shall be entitled to remuneration as if such deemed amount had been paid by the Debtor.
3.6. Where the Client accepts or enters into an arrangement for the payment by a Debtor of any account by installments, the Company shall be entitled to charge commission in accordance with the Schedule of Fees and Charges on each and every installment paid.
3.7. The Client agrees to notify the Company immediately in the case that any money is received directly, or any agreement to receive money directly is made, by facsimile, email, or an authorised web portal, or any software that is installed for the purpose of communicating with the Company.
3.8. In the event of termination of this Agreement then the Company shall be entitled to issue an account(s) to the Client for:
a) all expenses incurred by the Company in the provision of the services to the date of termination of this Agreement (“the date of termination”);
b) all legal costs and disbursements incurred in or relating to the provision of the services to the date of termination; and
c) all commissions payable to the Company and, in determining what commissions are due to the Company, the Client agrees and acknowledges that where the Client has accepted or entered into an arrangement for payment by a Debtor of an account by installments the debt or balance thereof outstanding at the date of termination shall be deemed to have been paid as at the date of termination and the Company shall, when forwarding an account(s) to the Client in accordance with this clause, provide the Client with a report in relation to each and every matter and file which the Client has referred to the Company.
3.9. The Client agrees and acknowledges that the Company shall be entitled to retain possession of all files, papers and/or documents whether provided to the Company by the Client or produced by the Company and/or any Legal Practitioner for the purposes of and/or in the course of provision of the services until all monies owing by the Client to the Company and/or any Legal Practitioner engaged by the Company for and on behalf of the Client have been paid in full.
3.10. The Client acknowledges that the amount of any commission calculated by reference to the percentage rate in the Schedule of Fees and Charges.
3.11. Amounts payable by the Client to the Company are exclusive of GST and the Company shall be entitled to charge, in addition to any other amounts, the amount of any GST payable on all and any of the said amounts. (Australian Clients Only)
4. Payment
4.1. The Company may issue monthly accounts to the Client for each of the Client’s accounts in respect of which the Company is entitled to be paid commission and/or recoup expenses for that month.
4.2. All accounts issued by the Company shall be in the form of Tax Invoices within the meaning of that term in A New Tax System (Goods and Services Tax) Act (“the Act”) and shall contain such information as may be prescribed and/or required by the Act.
4.3. The Client shall pay any and all accounts issued by the Company to the Client within seven (7) days of the date of such account.
4.4. In the event that the client fails to pay the Company’s account in accordance with this Terms and Conditions then, in addition to and without prejudice to any other remedies which the Company may have;
a) the Company shall be entitled to cease to provide all and any collection services to the Client until payment in full of all of the amounts owing by the Client to the Company; and
b) the Company shall be entitled to charge interest, at the rate(s) from time to time prescribed pursuant to s94 of the Supreme Court Act 1970, on all and any amounts outstanding to the Company and which are not paid in accordance with the terms and conditions of this Agreement.
4.5. Notwithstanding any other provision of this Agreement, the Client authorises the Company to deduct from all and any monies received and/or collected by the Company on behalf of the Client and held by the Company in Trust all and any amounts owing by the Client to the Company for the services provided by the Company in respect of all and any of the client’s accounts.
5. Authority to Receive
5.1. The Client authorises the Company to bank to the credit of the company’s Trust Account all monies received by the Company from whatever sources in payment of any and/or all of the amounts owing by any or all Debtor.
5.2. Subject to the Company’s right to retain from monies held in Trust on behalf of the Client (“Trust monies”) any amounts in accordance with these Terms and Conditions, the Company shall account to the Client for all Trust monies at the end of each and every month unless specifically agreed in writing to the contrary.
6. Conditional Use Policy
6.1. As a condition of The Company’s privacy policy, the information obtained by the Client will be used for the primary purpose of collection the outstanding money to the Client. Further details about the Company’s privacy policy can be found at http://www.erecoveries.net/privacy.html
6.2. The Client agrees to allow the Company to use their customers’ information to inform other companies of an outstanding matter for the purpose of identifying delinquent behavior by a potential new member through the Company’s “Debt Register”. The Client agrees to allow the Company to continue using their information for this purpose even in the event that other services are terminated.
7. Termination of Agreement
7.1. Either party shall be entitled to terminate this Agreement, with or without reason, upon the giving of thirty days notice in writing to the other.
7.2. Upon termination of this Agreement pursuant to the provisions of clause 6.1 and in addition to any other obligation herein, the Company shall account to the Client for all Trust monies and remit to the Client, all such Trust monies subject to the Company’s right to retain all or any part of the Trust monies.
8. Indemnity
8.1. The Client shall indemnify and keep indemnified the Company against all claims, actions, demands, proceedings, damages and or loss made and/or commenced against the Company or suffered by the Company and arising from any action or step taken by the Company on the Client’s behalf in or relating to the provision of the collection services regardless of whether such step or action has been authorised by the Client and whether or not such claim, action, proceeding loss and/or damage arises as a result of the negligence of or nonfeasance of the Company or any of its employees, servants and/or agents.
8.2. The Client agrees to make no claim from The Company, or its agents or its employees for any loss (including consequential loss) arising from damage, loss of data, system breakdowns, failure or malfunctions that occur as a result of, or are perceived to have occurred as a result of the installation or operation of the software.
9. Disclaimer
The Client acknowledges that the Company does not and can not warrant the accuracy, completeness and/or correctness of all and any data, information and/or searches obtained by the Company from any third party source (“the information”) and the Company shall not be liable for any loss and/or damage that may be incurred or suffered by the Client as a result of and/or arising out of, whether wholly or in part, the Client acting upon or relying on the information and/or any interpretation, communication and/or delivery of the information by the Company to the Client.
10. Amendment of Terms and Conditions
10.1. The Company reserves unto itself the right at any time to:
a) Amend vary and or modify any of these terms and conditions and/or
b) Amend vary and/or increase the Fees and Charges specified in the
schedule of Fees and Charges by giving to the Client not less than 30 days notice in writing (“the variation notice”). The Variation Notice shall specify amendments, variations, modifications and/or increases to these Terms and Conditions and/or the fees and charges specified in the schedule of Fees and Charges and nominate a date, not being less than 30 days from the date of service of the variation notice, from which the amendments, variations, modifications and/or increases shall operate. The client agrees that from the date specified in the variation notice these Terms and Conditions and/or Fees and Charges shall be deemed to be amended varied, modified and/or increased as specified in the variation notice.
10.2. No variation of these Terms and Conditions shall be effective unless in writing and signed by the Company.
11. Jurisdiction
The law relating to this Agreement shall be the law of the State in which the Company has its principal place of business and the parties agree that any claim, action, dispute and/or proceedings brought by either party relating to or arising from this Agreement shall not be commenced and/or maintained in other than a court in the state whose law governs this Agreement.
12. Severability
The provisions of this agreement shall be severable so that the invalidity unenforceability or waiver of any of the provisions shall not affect the remaining provisions.
13. Waiver
The waiver by the Company of any breach of this Agreement by the Client shall not prevent the subsequent enforcement of that term unless such waiver is in writing from the Company and shall not be deemed a waiver of any other or subsequent breach.
14. Service of Notices
The address for service of notices upon the parties pursuant to these Terms and Conditions shall be:
a) in respect of the company, the address of the company’s principal place of business or such other address as may be notified from time to time in writing and
b) in respect of the Client the then registered office and/or principal place of business of the Client.
Where you have received this agreement, but have failed to sign it and yet having gauged the debt collection services of Entertainment Recoveries the engaging of that service will be an acceptance by conduct of the terms of this agreement as if you had actually signed the agreement. We will however be entitled to at any time cease providing debt collection services to you in the event that you have not signed the agreement.
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