Terms and Conditions
i.e. the fine print!
Date of Last Revision: June 21, 2017
In this Agreement, InDebted Australia Pty Ltd (ACN 613 132 951 / NZBN 9429 042 486 930), shall be known as InDebted and you the Client.
This document is an agreement between InDebted Australia Pty Ltd trading as InDebted and you (Client).
The legal relationship between the Client and InDebted is that of principal and an agent respectively, nothing in these terms and conditions shall be construed as constituting a relationship of principal/contractor, joint venture or partnership.
By submitting a debt with InDebted, you are signing this Agreement electronically. You agree your electronic signature is the legal equivalent of your manual signature on this Agreement. By submitting a debt you consent to be legally bound by this Agreement's terms and conditions.
You further agree that your use of a key pad, mouse or other device to select an item, button, icon or similar act/action, or in accessing or making any transaction regarding any agreement, acknowledgement, consent terms, disclosures or conditions constitutes your signature (hereafter referred to as "E-Signature"), acceptance and agreement as if actually manually signed by you in writing.
You also agree that no certification authority or other third party verification is necessary to validate your E-Signature and that the lack of such certification or third party verification will not in any way affect the enforceability of your E-Signature or any resulting contract between you and InDebted.
You also represent that you are authorised to enter into this Agreement for all persons who own, have any interest in or are authorised to access any of your accounts and that such persons will be bound by these terms and conditions.
If any provision of these terms and conditions are wholly or partially invalid or unenforceable, that provision will be severed from these terms and conditions and will not affect the validity or enforceability of the remaining provisions which will continue in full force.
These terms and conditions constitute the entire agreement between the parties concerning its subject matter and the parties agree that all prior representations, agreements, statements and understandings, whether verbal or in writing, have not been relied upon and are expressly excluded.
These terms and conditions may be executed in any number of counterparts each of which shall be an original but such counterparts together shall constitute one and the same instrument, and the date of the Agreement will be the date on which the last party executes it.
Termination of these terms and conditions will not release either party from any liability or right of action which at the time of expiry or termination has already accrued to either party or which may thereafter accrue in respect of any act or omission prior to such expiry or termination. Such right may include but are not limited to, the collection/recovery of any money due.
Either parties’ failure or delay in exercising any power or right does not act as a waiver of that power or right.
These terms and conditions may not be varied except by written notice signed by or on behalf of each of the parties.
Any notices under these terms and conditions must be in writing and may be given by email communication to the party's designated email.
These terms and conditions are governed by the laws of New South Wales and each party irrevocably submit to the non-exclusive jurisdiction of the courts of New South Wales.
Each party irrevocably waives any right to any claim of forum non-conveniens, inconvenient forum, or transfer or change of venue.
The following definitions shall apply to the terms and conditions set out below that form part of the Agreement between InDebted and you the Client:
Means the amount payable by the Client to InDebted for the provision of the services in accordance with this agreement.
Means any debt referred to InDebted by the Client for collection/recovery in accordance with this Agreement.
Recovered Debt Amount:
Means any amount of a Debt Amount actually recovered by either InDebted, the Client or a third party prior to, at the time of, or after referral of a Debt by the Client to InDebted in accordance with this Agreement.
Means the amount of any Debt that is referred to InDebted by the Client for collection/recovery in accordance with this Agreement.
Means the services referenced in Section 4 of this agreement.
Means the assignment of a Debt for collection/recovery by InDebted on behalf of the Client through one or many Debt Submission Channels.
Debt Submission Channels:
Means one of many possible channels provided by InDebted to the Client for Debt Submission. These channels may change from time to time and are inclusive of (but not limited to) Online Forms, Paper Forms, Social Media Platforms, Telephone, In-Person and through referral partners.
This Agreement shall commence on the same day that you indicate that you agree to the terms of this Agreement, and shall continue until terminated in accordance with these terms and conditions.
3.1. By way of a Debt Submission Channel provided by InDebted, the Client engages InDebted, and InDebted agrees, to attempt to collect/recover debts owing to the Client by its debtor(s), as the agent of the Client, from time to time.
3.2. The Client will provide InDebted with all such information and documentation as InDebted may reasonably deem necessary to collect any debt.
3.3. The Client warrants that all information it provides InDebted concerning the debtor and/or the Debt or any other information, written or otherwise, is complete, accurate and correct.
3.4. The Client authorises InDebted to receive, endorse, and deposit all monies recovered, into its trust account on behalf of the Client and to deduct all applicable Fees 7 days after invoiced.
3.5. The Client authorises InDebted and any of its agents to negotiate, and make offers on Debt Amounts for payment from the Client's debtor(s). The Client agrees to not unreasonably hold consent in relation to an offer by the debtor(s).
3.6. The Client agrees that they will notify InDebted within seven (7) days of receiving any payment from a debtor for a Debt assigned to InDebted for collection/recovery.
3.7. The Client agrees to meet on demand all necessary and incurred disbursements, including legal and court fees, search fees, and other incidental costs including GST, of attempting to collect/recover a Debt through legal proceedings, even if the resulting collection/recovery process is not at all or only partially successful.
3.8. InDebted reserves the right to refuse any collection/recovery matter referred to it by the Client at the sole discretion of InDebted.
3.9 InDebted reserves the right to cease acting on any collection/recovery matter referred to it by the client at the sole discretion of InDebted.
The services that InDebted agrees to provide to the Client are
inclusive of (but not limited to) one or a combination of the
- Locating or Skip Tracing the Client's debtor(s).
- Correspondence with the Client's debtor(s).
- Issuing demands to the Client's debtor(s).
- Negotiating with the Client's debtor(s).
- Liaising with the Client's debtor(s) solicitors or representatives.
- Instructing third parties to correspond with Client's debtor(s), including field calls.
- Instructing solicitors (as per Section 5 of this Agreement) to commence legal proceedings.
- Any other services usually provided by a debt collection/recovery agent.
5. Legal Services
5.1. Should InDebted be unsuccessful in collecting/recovering a debt it may, at its sole discretion, choose to conduct a legal proceedings viability review on the matter.
5.2. Should InDebted determine that a matter is potentially viable for legal proceedings it may, at its sole discretion, recommend to the Client that legal proceedings be commenced.
5.3. InDebted shall provide the Client the opportunity to accept or reject the commencement of legal proceedings for the matter.
5.4. The Client grants a limited power of attorney to InDebted to engage a law firm on the Client's behalf, for the purpose of commencing proceedings to recover a Debt from the Client's debtor(s).
5.5. InDebted will tender any and all legal work to one or many of InDebted's legal partners
5.6. One or many of InDebted's legal partners will provide a fixed price quote to InDebted for review. InDebted will examine such quotes, and at its sole discretion, select a law firm.
5.7. The law firm will charge according to the scaled legal cost rates set by the State and Federal Courts of Australia as amended from time to time, where the scale rates do not apply to a legal service, the law firm will charge the Client in accordance with its ordinary hourly rates.
5.8. The Client will be liable for all disbursements and legal fees regardless of whether or not a Debt is successfully recovered, either in whole or in part.
5.9. If legal action is defended by a debtor, the law firm will provide the Client with a cost agreement and cost disclosure document.
6. Continued Services
6.1. InDebted and the Client agrees that these terms and conditions shall apply to any and all Debt(s) referred by the Client to InDebted for collection/recovery from time to time unless both parties agree that another agreement shall apply.
6.2. The Client agrees that InDebted may choose to keep a debt collection/recovery matter open, or to close such matter, regardless of whether these terms and conditions are terminated until such a time as the Debt Amount, fees and costs incurred are fully paid.
7. Fees & Disbursements
7.1. If the Client refers a Debt to InDebted for collection/recovery, and payment is at any time made to the Client, InDebted, or a third party, InDebted's fees are payable by the Client based on the amount received.
7.2. If the Client refers a debt to InDebted for collection/recovery, and the Recovered Debt Amount is less than, or more than, the Debt amount, the fees payable to InDebted by the Client shall be based on the Recovered Debt Amount.
7.3. If the Client accepts goods or services in lieu of payment from the debtor(s), the fees payable to InDebted by the Client shall be based on the full Debt Amount.
7.4. If the Client becomes aware that the debtor(s) have paid the Debt Amount prior to assigning the Debt to InDebted, the fees payable to InDebted shall be based on the full Debt Amount.
7.5. If the Client is aware that the debtor(s) is bankrupt at the time of assigning the Debt to InDebted for collection/recovery, the fees payable to InDebted by the Client shall be based on the full Debt Amount.
7.6. If any collection/recovery managed by InDebted is compromised in any way, the Client agrees that the fees payable to InDebted by the Client shall be based on the full Debt Amount. A collection/recovery is deemed compromised when a Client interferes with the ability of InDebted to collect/recover a Debt Amount through their normal processes and procedures.
7.7. InDebted's fees and the right of InDebted to recover unpaid Fees is a debt due and payable by the Client and shall survive the termination of these terms and conditions.
7.8. The Client agrees that it is liable to reimburse InDebted for all disbursements incurred by InDebted in the course of providing the Services covered by these terms and conditions.
8. Invoices, Trust Monies & GST
8.1. All invoices issued by InDebted are payable upon the receipt of invoice.
8.2. The Client agrees that should payment not be made by the due date, a debt collection equal to twenty (20) percent of the amount due will be included in the total amount owing and interest at the rate of three (3) percent per annum shall accrue on any outstanding amount compounded on a daily basis from the due date and the total amount shall be payable by the Client to InDebted as a debt due and owing.
8.3. The Client agrees that any Recovered Debt Amount will not be paid out by InDebted until fourteen (14) days after the last day of the calendar month it was received by InDebted.
8.4. Should InDebted choose to pay out any Recovered Debt Amount prior to timeframe mentioned above, it is doing so at its sole discretion.
8.5. The Client agrees that InDebted may allocate any funds its holds in its trust account on behalf of the Client to offset any previously issued invoices that are owing to InDebted by the Client.
8.6. InDebted may from time to time request that you place money in its trust account to account for professional costs and disbursements.
8.7. If any amounts payable by the Client are subject to GST, then the Client is liable to pay the applicable GST on that amount.
9. Warranties & Indemnity
The Client makes the following warranties to InDebted:
9.1. All Debt Amounts are due and owing to the Client by their debtor(s).
9.2. The Client has provided InDebted with complete, true and accurate details of the debtor(s).
9.3. That all information that the Client provides to InDebted is complete, true and accurate.
9.4. The Client shall indemnify and keep indemnified InDebted for any damage arising from any and all information that the Client provides which may be incorrect, false and/or misleading.
9.5. The Client indemnifies and will keep InDebted indemnified (on a full indemnity basis) from and against any and all claims, liabilities, obligations, expenses or damages which InDebted may suffer or incur as a result of, or in connection with, these terms and conditions.
10. Limitation of Liability
InDebted expressly excludes any liability to the fullest extent of the law for consequential loss, incidental or indirect damages (including but not limited to damages for loss of business profits, business interruption and loss of opportunity) due to, or arising from, the Services. Where the law precludes such exclusion and implies certain conditions and warranties into these terms and conditions, the liability of InDebted for breach of such conditions or warranties shall be limited, to the amount paid by the Client in respect of the Services with respect to the specific Debt Amount assigned to InDebted.
11. Privacy Authority & Consent
11.1 The Client agrees and expressly consents to, InDebted
undertaking the following activities to the extent permitted
a.Provide any items of the Client's and its debtor(s) personal information described in section 18E of the Privacy Act 1988 to a credit reporting agency.
b.Obtain a consumer credit report about the Client and its debtor(s) from a credit reporting agency to assess the Credit Application or proposed guarantee or collect overdue payments.
c.Give credit worthiness information about the Client service providers to assess the Client's credit worthiness or applications for credit or to notify defaults of the status of the credit.
11.2 The Client acknowledges and agrees that they may request access to their personal information held by InDebted. The Client expressly consents to InDebted accessing it's personal information to the extent that it is required to carry out the Services.
11.3 The Client warrants that they have obtained express permission from its debtor(s) to refer debtor information, which may include personal information, to InDebted or any other credit reporting agency and that the Client has not breached any agreement with the Debtor(s) or applicable legislation by doing so.
11.4 The Client agrees and expressly consents to InDebted sharing its personal information with InDebted's related companies and services, which may engage in direct marketing activities to the Client from time to time. The Client may choose to unsubscribe to such marketing activities directly with the related companies and services.
12.1 InDebted may terminate these terms and conditions upon
the happening of any of the following events:
a. The Client fails to pay the invoices by the Due Date and InDebted has issued the Client with a letter of demand which the Client has not complied with.
b. The Client has been placed into administration or is the subject of a bankruptcy or winding up proceedings.
c. The Client may terminate these terms and conditions immediately if InDebted, by notice in writing to the Client, carries its Fees.
d. These terms and conditions shall terminate upon either party giving the other party one (1) month's written notice.