In this Agreement, “JMA”, “We”, “Our” and “Us” means Glan Avon Investments Pty Ltd ACN 136 362 984 trading as JMA Credit Control and “you” means you whether in your personal capacity or as an authorised representative on behalf of another person, business or entity.
1.1 In this Agreement, the following definitions apply unless the context requires otherwise:
(a) Agreement means the Service Agreement submitted by you to JMA:
(i) via the “Collect Outstanding Debts Now” link available on our Website and accepted by JMA together with these Terms; or
(ii) by way of email to firstname.lastname@example.org and accepted by JMA together with these Terms.
(b) Annual Subscription means a subscription service where you pay to JMA a fee for access to lower commission rates for a period of twelve (12) months.
(c) Business Day means a day that is not a Saturday, Sunday, public holiday in the State in which the Services are provided;
(d) Commencement of Services means when JMA is engaged by you in accordance with the terms of the Agreement and upon any Service provided to you by JMA, you agree that JMA is entitled to its entire commission and any other agreed costs which accord with the terms of this Agreement and which become due and payable in accordance with clause 9 of this Agreement;
(e) Commission means the commission rates that JMA is entitled to charge you (plus GST) for the Services in respect of the Debt. The Commission charged is calculated on the total of each Debt in accordance with the rate table provided on our website or proposal document.
(f) Confidential Information means:
(i) any information whether or not in a material form that directly or indirectly relates to Us, the 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(s) means the agreed value of the debt in Australian dollars (AUD) (inclusive of GST) owed to you by the Debtor as lodged by you with JMA.
(h) Debtor means the person, business or entity which owes the Debt to you as lodged by you with JMA;
(i) Disbursements means any third-party costs or expenses incurred by Us in connection with the provision of the Services to you;
(j) Guarantor(s) means a person or persons who guarantees payment of all moneys payable by you to Us under this Agreement and the performance of your obligations under this Agreement;
(k) JMA Proposal means a document provided to you by JMA for review and consideration prior to the engagement of JMA.
(l) Legal Fees means legal fees or expenses and third-party costs that may become due to Us or the solicitors that you instruct Us to engage and act on your behalf (should you provide Us with authorisation to proceed with legal proceedings to recover the Debt);
(m) Professional Reputation means JMA Credit Control’s excellent reputation as recovery agent: whereby JMA has a proud and lengthy history of providing quality services to its clients in order to achieve outcomes desired in recovery of monies owed to its clients.
(n) Reporting Fees means fees incurred by JMA as a result of running credit reports on Debtors.
(o) Service Agreement means a document governed by these Terms and:
(p) available on Our website via the “Collect Outstanding Debts Now” link; or
(ii) contained in a document titled “JMA Proposal” that is provided to you by JMA prior to engagement.
(q) Services means the provision of debt recovery services, to recover debts owed to you by your debtor/s. These debt recovery services may include but not be limited to demands made on any of your debtors for recovery of your debts and costs incurred by you on your debtor’s behalf, which may entail phone calls to the debtor, text messaging and other electronic means sent to the debtor to recover debts and costs owed to you, and whereby demand for payment of your debts by the debtor may also be in the form of written correspondence, email or facsimile transmission, but excludes any legal services. A Field Call attendance and the lodgment of a Caveat are both considered a debt recovery service.
(r) 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 (or part thereof) recovered for the preceding month, any payable Disbursements, Reporting Fees and Annual Subscription fees; and
(s) Terms means these Terms and Conditions of trade.
2. Your acceptance
2.1 You accept these Terms (whether in your personal capacity or as an authorised representative on behalf of another person, business or entity) when you:
(a) click and declare that you accept these Terms when submitting a Service Agreement via the “Collect Outstanding Debts Now” link available on Our Website; or
(b) Submit an executed Service Agreement by way of email to email@example.com.
(c) Consent to a credit check with a credit reporting body prior to provision of JMA services
(d) Consent to a Guarantor sign a Guarantee and Indemnity when requested by JMA
2.2 Trustee/Agent Capacity:
Where you are acting as trustee of a trust or as agent of another person, you will at the time of instructing us to collect a Debt, advise the name, address and ABN of the trust or principal. You agree that where clause 2.2 applies, that our client is the relevant trust or principal, and you warrant to us that:
(a) all your instructions to us are authorised by the relevant trust or
(b) you have authority to bind the trust or principal, and
you indemnify us against any loss or liability from any breach of
this clause, inclusive of but not limited to liability of payment of JMA Credit Control invoices.
3. Appointment as your agent
3.1 By submitting one or more Service Agreements 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.
3.2 All Agreements are valid for a period of twelve (12) months from the date the Service Agreement is submitted to JMA. After this period the Service agreement will either automatically renew or JMA reserves the right to review and adjust the Terms of the Agreement, which is capable of acceptance or rejection by you, and if rejected this Agreement is at an end.
3.3 JMA will provide you with notice of the automatic renewal of the Agreement 30 days prior to the expiration date of the then current term. If you do not want to renew the Agreement you must notify JMA in writing by email to firstname.lastname@example.org at least three (3) Business Days before the expiration date of the then current term, failing which the Agreement will automatically renew for a further period of twelve (12) months.
3.4 This Agreement may be terminated by either party in writing only.
3.5 As your agent, for the purpose of conducting the Services, you expressly authorise Us to:
(a) conduct necessary searches or inquiries;
(b) make necessary phone calls; and
(c) draft and send necessary correspondence including by email and by post.
3.6 No legal action will be taken by us unless and until We are instructed to do so by you.
3.7 We may close a file or withdraw our involvement where We request your instructions and no response is received within fourteen (14) days of the request.
3.8 As part of our Services, We will conduct telephone demands, instruct field agents, provide written demand upon your debtors, locate debtors, instruct location agents, generally request you cease contact with the debtors (unless directed by Us) and any other business activities as needed from time to time.
3.9 By appointing Us as your agent, you also authorise Us to accept payments from your Debtors on your behalf and bank these payments into Our trust account.
3.10 Disbursements and Legal Fees will be charged as per the current scales as provided upon request or on Our website via the “Legal Costs” link and all recoverable costs will be refunded to you by JMA if and when they are recovered from the Debtor.
3.11 As your agent, you expressly authorise Us to engage and instruct solicitors at our discretion for legal and enforcement action. A copy of the solicitor’s costs disclosure will be provided to you for approval prior to Us formally instructing them. You will be liable for any and all fees charged by the solicitor and/or their law firm.
3.12 Annual Subscription commission rates are locked in for a period of twelve (12) months for the subsequent period from the invoice date of Annual Subscription and apply to new Debts only. Any active Debts you may have with JMA at the time of electing an Annual Subscription will be subject to the existing commission rate for that Debt.
3.13 Rates on any and all proposals provided by Us to you are valid for strictly thirty (30) days from the date of the proposal.
4. Payment Terms
- 4.1 Any Tax Invoice rendered is payable strictly thirty (30) days from the date printed on the Tax Invoice.
4.2 If you have a trust balance exceeding $2,000.00, We will remit the balance of trust monies to you on a fortnightly basis if you:
(a) are on a contra agreement with JMA after deducting all charges for Commission and Disbursements; or
(b) have paid your account within our terms.
4.3 If you have a trust balance under $2,000.00, We will remit the balance of trust monies to you on a monthly basis if you:
(a) are on contra agreement with JMA after deducting all charges for Commission and Disbursements; or
(b) have paid your account within our terms.
5. Security Interest
5.1 You acknowledge and agree that to secure payment of any and all amounts outstanding to Us from time to time, We have a lien over all papers, files, documents and deeds that belong to you and received by Us while providing the Services, including any money that We are holding on your behalf and files and documents relating to other matters which have been completed and paid for by you.
6.1 You warrant and covenant to JMA that:
(a) if you are submitting a Service Agreement on behalf of another person, business or entity, you are authorised to do so;
(b) JMA is the exclusive provider of the Services with respect to the Debt for the term of this Agreement;
(c) all details and information which you provide to Us are true and correct and include all information relevant to the Debt;
(d) you will not interfere with or impede the provision of the Services by JMA; and
(e) the rate at clause 10.1(a) is a fair reflection of the administrative costs associated with recovery of any outstanding accounts.
7.1 In addition to your other obligations set out in the Agreement, you will:
(a) relinquish all communication with the Debtor for the duration that the file is managed by us (including the cancellation of forwarding Debtor’s account statements), unless otherwise directed by us;
(b) direct all Debtor communication to us unless otherwise directed by us;
(c) notify us immediately if any Debtor or its representative makes contact with you;
(d) notify us immediately if a Debt is paid to you, whether in part or in whole and whether paid directly by the Debtor or on behalf of the Debtor;
(e) not negotiate, settle or otherwise compromise any Debt without first notifying us in writing; (f) notify us immediately of any change to the balance outstanding on any Debt; and
(g) notify us immediately if there is any change to your contact details.
8.1 Legal Fees will be incurred by you upon receipt of instructions to file legal proceedings, pursuant to Paragraph 4 of these Terms. A reversal of your instructions and Legal Fees being incurred, will be subject to whether any work has yet been commenced by Us.
8.2 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.
8.3 You acknowledge that any legal proceedings will be brought in your name.
9. Commission and payment
9.1 In consideration for the Services, you agree to pay Us the Commission.
9.2 The Commission charged will be calculated on the total Debt amount and based on the prevailing commission rate at the date when you submit the Service Agreement to Us and does not include Reporting Fees, Disbursements or Legal Fees which you are liable to pay in addition to the Commission.
9.3 The Commission will apply for all of the following circumstances from the commencement of this Agreement:
(a) on all payments received by Os, Our agents, solicitors or representatives at any time; and
(b) on all payments received by you, your agents, solicitors or representatives or insurers during the term of this Agreement.
9.4 Regardless of what Services have been performed by Us to recover the Debt We will be entitled to charge you Commission on the total Debt amount if you:
(a) are paid a Debt in whole or in part whether directly by the Debtor, on behalf of the Debtor or by any third party; regardless of whether the Debt file status is currently open or closed with JMA;
(b) accept a return of goods, offset or credit in satisfaction of a Debt;
(c) have previously been paid prior to handing the Debt to JMA.
(d) breach your obligations as set out in clause 7; or
(e) withdraw your account within 60 days or no instructions received with Us within 30 days from the date of:
(i) lodgement of the Debt;
(ii) the goods being returned; or
(iii) the Debt being settled whether in whole or in part.
9.5 Any Commission or Disbursement payable by you to JMA as a result of you receiving payment of the Debt (or part thereof) directly from the Debtor or its representative, will become due within thirty (30) days of the date of receipt of such payment or acceptance by you.
9.6 If you reject a Debtor’s payment proposal for any reason whatsoever, (for example, such as the length of time it would take to satisfy full payment), and you decide not to file Court proceedings or any other proceedings initiating further debt recovery action, we reserve the right to charge commission on the balance of the outstanding debt.
9.7 In the event you have a good faith dispute relating to the amounts set forth on any Tax Invoice, you may challenge, in writing to JMA by email to email@example.com, the accuracy the Tax Invoice, provided:
(a) you are not in default under the Agreement; and
(b) that the undisputed portion of the Tax Invoice at issue is paid in accordance with the Terms; and
(c) the documentation regarding the disputed amount is provided to JMA on or before the date such disputed amount was due.
9.8 After reviewing the disputed Tax Invoice and any documentation provided by you, JMA may at its discretion and on a case-by-case basis, adjust the Tax Invoice.
9.9 If you do not challenge the accuracy of a Tax Invoice within twelve (12) months from the date of receipt, such Tax Invoice shall be binding and shall not be subject to challenge.
10.1 Should you fail to pay Us the amounts as set out in a Tax Invoice within 30 days of the date of the Tax Invoice, JMA, its agents or solicitors will have the right to do one or more of the following actions:
(a) charge you monthly interest on any overdue amounts owed by you at a rate of 5% per annum above the Reserve Bank of Australia’s cash target rate until the date of payment;
(b) give you written notice to rectify the material breach of the Agreement, failing which JMA will terminate or suspend the provision of Services (including ceasing to instruct solicitors in any legal action);
(c) set-off monies due to you with monies you owe Us in respect of all of your Debts;
(d) commence legal action to recover amounts owed to JMA including any additional collection costs;
(e) hold any refunds due to you until your account with JMA is paid in full within the trading terms; and
(f) list a default against you with Equifax.
10.2 In addition to clause 10.1, you will be liable for all collection costs, legal fees and disbursements which We may incur arising from the default calculated on the indemnity basis.
11.1 Either party may terminate this Agreement subsequent to providing the other party written notice to rectify material breach of the Agreement, and there remains a failure of the other party to rectify the breach.
11.2 On termination, We are discharged from any further obligations under this Agreement other than those set out in clause 11.3(b)(ii).
11.3 Upon termination of this Agreement:
(a) you must comply with your payment obligations set out in clause 9 in relation to Tax Invoices issued before and after termination; and
(b) We will:
(i) return all Confidential Information requested by you in writing, within 30 days of receipt of your request if your account with JMA has been paid in full;
(ii) comply with any procedural requirement in respect of any ongoing legal Proceeding; and
(iii) keep a copy of all referred documents relating to a debt will remain on file even if the contract is canceled.
12. Confidential Information
12.1 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.
13.1 The parties must keep details of this Agreement confidential and may only disclose particulars of this Agreement to its advisers for the purpose of enforcing or exercising rights granted under this Agreement or to comply with any law or order of any competent court or tribunal or other authority.
14.1 Any personal information disclosed by you to JMA is subject to and will be handled in accordance with the Privacy Act 1988 (Cth) (Privacy Act) and the Australian Privacy Principles.
14.2 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 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.
14.3 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 youhave complied with the Privacy Act and the Australian Privacy Principles.
15. Limitation of Liability
15.1 We shall not be bound by any other covenants, representations or warranties other than those specified in this Agreement.
15.2 While the parties to the Agreement do not purport to limit or otherwise affect the operation of State and Federal laws in Australia, the parties agree not to hold each other liable for any loss, damage or expense incurred (on either an express or an implied basis) from or by the acts or omissions of the parties, their employees, agents or solicitors whilst the parties acts in accordance with the Terms of this Agreement.
15.3 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 JMA is entitled to do so, its liability shall be limited, at its discretion, to:
(a) the supplying of the Services; or
(b) the payment of the cost of having the Services supplied.
16.1 Both parties to the Agreement will indemnify each other and their employees against all losses, damages, expenses and costs (on a full indemnity basis) that either party or their employees may sustain or incur as a result, whether directly or indirectly, of:
(a) the other party breaching this Agreement;
(b) the other party supplying any misleading, false or insufficient details;
(c) any negligence or wilful misconduct by the other party; and
(d) any third-party claim, except third party claims arising out of or relating to the other party’s negligence, or the other party’s breach of this Agreement.
17.1 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.
18.1 Each of these Terms are severable from the others and severance of a terms will not affect any other term.
19. Entire Agreement
19.1 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.
20. Jurisdiction and law
20.1 Unless otherwise agreed in writing by Us, at Our sole selection, the Courts of any State or Territory in Australia will have exclusive jurisdiction in relation to all matters whatsoever concerning these Terms. You irrevocably waive any objection to the venue selected by Us in relation to any legal proceedings concerning these Terms. The laws of the State or Territory chosen by Us for any such legal proceedings, will govern these Terms.
21.Guarantee and Indemnity
21.1 At the time of receipt of the Service Agreement, We will request that a Guarantor sign a Guarantee and Indemnity (on terms set out in clause 21 herein) before we perform any Services for you.
21.2 The Guarantor(s):
(a) guarantees the punctual payment to Us of all amounts which you owe now or may owe at any time in the future to Us pursuant to this Agreement;
(b) guarantees the punctual and correct compliance with all obligations (including payment obligations) which you owe now or may owe in the future to Us pursuant to this Agreement;
(c) indemnifies Us against any loss that We may suffer if you do not meet any of your obligations pursuant to this Agreement.
21.3 This Guarantee and Indemnity creates a principal obligation from the Guarantor(s) to Us and it is in addition to any security which We hold from you. This Guarantee and Indemnity may be enforced without Us having to first take any steps against you or your security.
21.4 This Guarantee and Indemnity is not affected and is still enforceable:
(a) if any amount owing to Us by you is not recoverable by Us for any reason at all;
(b) if We do not comply with any law or any agreement with you;
(c) if We grant any time, release or other concession to you or the Guarantors;
(d) in the event of death, incapacity, administration, bankruptcy or insolvency of you or of the Guarantor(s);
(e) if a payment by you or by the Guarantor(s) to Us is set aside in bankruptcy, liquidation or official management of you or of the Guarantor(s);
(f) if the Guarantor(s) cease to be director of or be involved with you or your status or structure changes at all; and
(g) if any other thing occurs which could otherwise limit the effect of this Guarantee and Indemnity.
21.5 This Guarantee and Indemnity is a continuing guarantee and indemnity and is not wholly or partially discharged until all arrangements between us and you are ended, all amounts owing to Us by you are paid, and all obligations of the Debtor to you are complied with in full.
21.6 The Guarantor(s) agree to waive all rights inconsistent with the terms of this Guarantee and Indemnity.
21.7 The Guarantor(s) hereby charge with payment of the Purchase Price and the compliance with all obligations secured by this Guarantee and Indemnity all beneficial interests (freehold and leasehold) in real property held now or in the future by the Guarantor(s). The Guarantor(s) agrees that if demand is made upon him or her or it or them by the Us, that Guarantor(s) will immediately execute a mortgage or other instrument of security, or consent to a caveat, as required by us to better secure the obligations of the Guarantor(s) under this equitable mortgage and against the event that he, she or it fails to do so within a reasonable time from being so requested, that Guarantor(s) hereby irrevocably and by way of security appoint any credit manager or solicitor engaged by Us to be his or her or its other true and lawful attorney to execute and register such instrument.