Terms and Conditions
Terms and Conditions
- “Agreement” means the agreement and these terms and conditions. It includes these terms, any covering letter, quotation, estimate and any other document that refers to these terms.
- “Claim” means any actual, contingent, present or future claim, demand, action, suit or proceeding for any Liability, restitution, equitable compensation, account, injunctive relief, specific performance or any other remedy of whatever nature and however arising, whether direct or indirect, and whether in contract, tort (including but not limited to negligence) or otherwise.
- “Client” means the customer set out in any quotation, offer or other document provided by Strathmores (or, in the absence of such information, the customer who placed the order).
- “Credit” means Strathmores providing, or proposing to provide, in the course of business, credit to the Client in relation to the rendering of services under the Agreement.
- “Debtor” means the party who owes the Client debt(s) that Strathmores has been engaged to collect on behalf of the Client.
- “Debts” means the outstanding amount the Debtor owes the Client and the Client engages Strathmores to collect.
- “Liability” means any loss, liability, cost, payment, damages, debt or expense (including but not limited to reasonable legal fees).
- “Placement” means the date the Client engages Strathmores to collect the outstanding debt(s) owed to the Client by the Debtor.
- “PPSA” means the Personal Property Securities Act 2009.
- “Privacy Act” means Privacy Act 1988 (as amended by the Privacy Amended (Enhancing Privacy Protection) Act 2012).
- “Price” means the price of the services including but not limited to any other charges Strathmores is entitled to under the Agreement.
- “Outstanding Debts” means all amounts unpaid by the Client to Strathmores as payable under the Agreement and in accordance with the relevant terms herein.
- “Security interest” means a security interest within the meaning of the Personal Property Securities Act 2009.
- “Services” means the services subject to this Agreement and any associated services.
- “Strathmores” means Strathmores Collections Pty Ltd ACN 611 253 626.
- The Client is taken to have accepted, and is immediately bound, jointly and severally, by the Agreement if the Client (or its agent or employee) requests the Services and/or accepts provision of the Services.
- This Agreement may only be amended with Strathmores’ written consent and shall prevail to the extent of any inconsistency with any other document or agreement.
- FORMATION OF CONTRACT
- Quotations made by Strathmores will not be construed as an offer or obligation to supply in accordance with the quotation. Strathmores reserves the right to accept or reject, at its discretion, any offer or request for Services received by it. Any request for Services, either verbally or in writing, will imply acceptance of Strathmores’ offer and of these terms and condition and/or Agreement.
- At Strathmores’ sole discretion the Price shall be either:
- as indicated on invoices provided by Strathmores to the Client in respect of the Services; or
- Strathmores’ quoted price (subject to clause 6) which shall be binding on Strathmores provided that the Client accepts the quotation in writing within 14 days.
- Strathmores reserves the right to change the Price:
- if a variation to the Services which are to be rendered is requested;
- if a variation to the Services originally rendered is requested; or
- in the event of increases to Strathmores’ cost of the Services which are beyond Strathmores’ control.
- At Strathmores’ sole discretion the Price shall be either:
- Strathmores will charge the Client commission at the agreed rate as stipulated in this Agreement.
- Commission will apply in all of the following circumstances from the time Strathmores creates a debt on its systems:
- On all payments received by Strathmores, its agents, solicitors or representatives at any time (this shall include debts where clause 20 has been executed and/or any other debts that may have been otherwise withdrawn).
- On all payments received by the client, its agents, solicitors, representatives or insurers during the term of the Agreement and for 120 days after the withdrawal of any file (including when clause 20 is executed by the client).
- On any withdrawal of a debt by the Client where legal action exists, or where the Debtor has entered into a repayment arrangement by instalments, or promised payment to either Strathmores or the Client (even if the promised payments have not been received). Commission shall apply immediately as if the debt were paid in full.
- Where the Client raises a credit against the debt or advises it was paid before placement or on the day of placement with Strathmores. Commission will apply on the value of the credit or payment.
- Where the Client withdraws a file claiming it should never have been placed with Strathmores. Commission shall apply on the full sum of the Debt but at the discretion of Strathmores.
- Minimum commission amounts outlined in the Agreement are applied to the value of each payment received.
- Strathmores is authorised to take such action as it considers reasonably necessary to collect the Debts the Client has engaged Strathmores to collect.
- Strathmores is authorised to instruct other third parties (such as legal practitioners and process servers) as is reasonably necessary to collect the Debts.
- All costs incurred by Strathmores from the instruction of other third parties will be payable by the Client.
- Strathmores will obtain the Client’s consent before incurring these costs.
- WARRANTIES TO THE CLIENT
- Strathmores shall continue all collection efforts without referral to the Client except for any action that requires the payment of a fee (save for commission).
- Strathmores shall never commence legal action against a Debtor without Client approval, such approval may be verbal.
- RIGHTS HELD BY STRATHMORES
- Strathmores shall always retain the right to close any file for any reason at any time without notice to the client.
- Strathmores shall always retain the right to contact the Client’s Debtor at any time; even after file closure or withdrawal.
- Strathmores and its agents or solicitors shall have the right without notice to the Client to cease action (including legal action) and/or close files if Strathmores’ statement of account is overdue. File reinstatement shall be solely at the discretion of Strathmores.
- Strathmores shall have the right to deduct any money owed to it by the Client from any money it holds on behalf of the Client. This clause may be overturned with the permission of Strathmores but will unconditionally apply if the Client’s account is overdue.
- Strathmores shall have the right to request pre-payment of any fees or legal costs at any time for any reason.
- Strathmores will have the right to bank funds it receives from Debtors into its “Strathmores Collections” account and may instruct all Debtors to directly pay into that account or to Strathmores by any other means.
- PAYMENT TERMS
- The terms of payment are strictly seven (7) days from the date of the invoice (or such other period as nominated by Strathmores herein). Strathmores may, at any time, unilaterally vary the terms of trade in its absolute and unfettered discretion.
- Should the Client not pay for the Services in accordance with the Agreement provided herein, Strathmores will be entitled to, at its discretion, charge an administration fee of 10 percent (10%) of the amount of the invoice payable.
- The Client charges in favour of Strathmores all of its estate and interest in any real property that the Client owns at present and in the future with the amount of its indebtedness until discharged.
- The Client charges in favour of Strathmores all of its estate and interest in any personal property that the Client owns at present and in the future with the amount of its indebtedness until discharged.
- Where the Client has entered into a previous Agreement with Strathmores in which the Client has granted a charge, mortgage or other security interest (including a security interest defined in PPSA) over or in respect of real or personal property, those charges, mortgages or other security interests and the terms which directly or indirectly create rights, powers or obligations in respect thereto will continue and co-exist with the obligations and security interests created in this Agreement and will secure all indebtedness and obligations of the Client under this Agreement. Strathmores may, at its election, vary the terms of such previous charges, mortgages or other securities to reflect the terms herein.
- The Client must pay for its own legal, accounting and business costs and all costs incurred by Strathmores relating to any default by the Client.
- The Client will pay Strathmores’ costs and disbursements incurred in pursuing any recovery action/or any other claim or remedy, against the Client, including collection costs, debt recovery fees, commission and legal costs on an indemnity basis. Such costs, disbursements and commission will be due and payable by the Client to Strathmores irrespective of whether pursuit of the recovery action, claim or remedy is successful.
- TAXES AND DUTY
- The Client must pay GST on any taxable supply made by Strathmores to the Client under this Agreement. The payment of GST is in addition to any other consideration payable by the Client for a taxable supply.
- If as a result of:
- any legislation becoming applicable to the subject matter of this Agreement; or
- any changes in legislation or its interpretation by a court of competent jurisdiction or by any authority charged with its administration,
Strathmores becomes liable to pay tax, duty, excise or levy in respect of the amounts received from the Client, then the Client must pay Strathmores these additional amounts on demand.
- Each of the following is an event of default, namely:
- The Client allowing any sum of money payable to Strathmores pursuant to this Agreement to remain unpaid one (1) clear day following the day upon which the amount became due and payable;
- The Client failing to punctually perform or observe any of the conditions or obligations imposed upon it by this Agreement and such failure remaining unremedied for a period of seven (7) clear days after the notice in writing is served upon the Client by Strathmores specifying the default;
- If Strathmores ascertains that the Client has made any false, inaccurate or misleading statement having a material effect in relation to the making of the Agreement or any related or collateral document;
- If the Client is a company, upon the passing of a resolution for its winding up or the making of any order by any court for its winding up, the appointment of a controller, provisional liquidator, receiver, or receiver and manager, or voluntary administrator in respect of it or in respect of the whole or any part of its assets;
- The levying of execution by any court against the Client and such execution not being satisfied within fourteen (14) days;
- If the Client, or if the Client is a company, any director of the Client, being convicted upon indictment of a criminal offence or being sentenced to a term of imprisonment; or
- If the Client breaches any one or more of the terms or conditions of this Agreement.
- Each of the following is an event of default, namely:
- All payments required to be made by the Client under this Agreement will be made free of any set-off, or counterclaim and without deduction or withholding.
- Any amount due to Strathmores from time to time may be deducted from any monies which may be or may become payable to the Client by Strathmores.
- The Client agrees to indemnify Strathmores for all and any costs and disbursements incurred in pursuing any recovery action or any other claim or remedy, against the Client, including collection costs, debt recovery fees, commission and legal costs on an indemnity basis. Such costs, disbursements and commission will be due and payable by the Client to Strathmores irrespective of whether pursuit of the recovery action, claim or remedy is successful.
- The Client agrees to indemnify Strathmores against all and any losses sustained by Strathmores as a result of any claim(s) or action(s) brought against Strathmores, whether those claim(s) or action(s) are by the Client or by a third party, pursuant to any event arising from or as a result of the Agreement.
- Strathmores is not liable for any loss caused to the Client by reason of strikes, lockouts, fires, riots, war, embargoes, civil commotions, acts of God or any other activity beyond Strathmores’ control.
- Strathmores is not liable, whether claims are made or not, for loss of profit, economic or financial loss, damages, consequential loss, loss of opportunity or benefit, loss of a right or any other indirect loss suffered by the Client.
- The Client agrees to accept service of any document required to be served, including any notice under the Agreement, the PPSA or court process, by prepaid post at any address nominated in this Agreement or any other address later notified to Strathmores by the Client or its authorised representative.
- PROVISION OF FURTHER INFORMATION
- If the Client is a corporation (with the exception of a publicly listed company), it must advise Strathmores of any alteration to its corporate structure (for example a change in directors, shareholders, or constitution). In the case of a change of directors or shareholders Strathmores may ask for the new directors or shareholders to sign a guarantee and indemnity.
- A waiver of any provision or breach of this Agreement by Strathmores must be made by an authorised officer of Strathmores in writing. A waiver of any provision or breach of this Agreement by the Client must be made by the Client’s authorised officer in writing.
- Strathmores reserves the right to cancel this Agreement at any time, whether the Client is in default under the terms of this Agreement or not.
- Upon cancellation of the Agreement, with or without notice, all liabilities incurred by the Client become immediately due and payable to Strathmores.
- The Client agrees that this Agreement may be varied, added to, or amended by an authorised officer of Strathmores at any time by written notice to the Client.
- Any proposed variation to this Agreement by the Client must be requested in writing. Strathmores may refuse any such request without providing reasons either orally or in writing.
- Variations requested by the Client will only be binding upon Strathmores if they are accepted in writing.
- If any provision of this Agreement is not enforceable in accordance with its terms, other provisions which are self-sustaining are, and continue to be, enforceable in accordance with their terms.
- If any part of this agreement is invalid or unenforceable, that part is deleted and the remainder of the Agreement remains effective.
- The Client acknowledges and agrees that this Agreement will be governed by the laws of Victoria, and the laws of the Commonwealth of Australia which are in force in Victoria.
- ENTIRE AGREEMENT
- This Agreement constitutes the entire Agreement between the parties relating in any way to its subject matter. All previous negotiations, understandings, representations, warranties, memoranda or commitments about the subject matter of this Agreement are merged in this Agreement and are of no further effect. No oral explanation or information provided by a party to another effects the meaning or interpretation of this Agreement or constitutes any collateral Agreement, warranty or understanding.
- Nothing in this Agreement shall be read or applied so as to purport to exclude, restrict or modify or have the effect of excluding, restricting or modifying the Agreement in relation to the supply of any Services pursuant to this Agreement of all or any of the provisions of the Competition and Consumer Act 2010 or any relevant State or Federal Legislation which by law cannot be excluded, restricted or modified.
AGREEMENT OF GUARANTEE & INDEMNITY
|To:||Strathmores Collections Pty Ltd ACN 611 253 626 and its related bodies corporates (Supplier)|
(Guarantors) hereby covenant and undertake and if more than one, jointly and severally, as follows:
- The Guarantors acknowledge and agree that the guarantee & indemnity is governed by the laws of Victoria, and the laws of the Commonwealth of Australia in force in Victoria and submit to the non-exclusive jurisdiction of the Courts of Victoria.
- In consideration of Strathmores extending or agreeing to extend credit or further credit to the Client at the Guarantor’s request (testified by the Guarantors’ execution of this Agreement) for Works undertaken from time to time, the Guarantors guarantee payment to Strathmores of all money which is now or at any time in the future becomes due and payable to Strathmores by the Client on any account or accounts whether now existing or which may in the future be opened or in any manner whatsoever, including but not limited to amounts payable by the Client to Strathmores arising out of a relationship of trustee and beneficiary.
- GUARANTEE AND INDEMNITY
- The Guarantors agree to guarantee and indemnify Strathmores against all losses damages or expenses that Strathmores may suffer as a result, either directly or indirectly, of any failure by the Client to make due payment of any money owing to Strathmores whether for materials sold or otherwise or to observe the terms of any agreement between the Client and Strathmores, including costs on an indemnity basis of any attempt or attempts to recover from the Client or any Guarantor and whether successful or not or whether frustrated by the Client or Guarantor or by operation of law and including costs ordered by a court to be paid by Strathmores to the Client or to any Guarantor including the costs of lodging and withdrawing caveats and obtaining injunctions or enforcing a security over property given to Strathmores.
- This guarantee and indemnity will be a continuing guarantee and indemnity and will not be considered as wholly or partially satisfied or discharged by any money which may at any time or times in the future be received or applied by Strathmores to the credit of any account of the Client or the Guarantors, or deemed to be held on trust by the Client for Strathmores, and will be available as a Guarantee and indemnity for the whole of the sums referred to in clauses 3.1 and 3.3 of this guarantee and indemnity.
- Where two or more persons execute this guarantee and indemnity, the guarantees, covenants and obligations in this guarantee and indemnity given or undertaken by the Guarantors will be deemed to bind the Guarantors jointly and east of the Guarantors severally and Strathmores will be entitled to seek payment in full from any one or more of the Guarantors without seeking payment from the other Guarantors.
- Strathmores will have the right to proceed against the Guarantors under the Guarantee & Indemnity, irrespective of default of the Client to pay and with or without notice to the Client, as if the primary liability for any money owing was the Guarantors’ own. Further, Strathmores will have the right to proceed against the Guarantors notwithstanding any other rights it may have in relation to the recovery of the amounts hereby guaranteed.
- This guarantee and indemnity will continue in force until such time as Strathmores releases the Guarantors in writing, and notwithstanding the fast that the Guarantors are no longer directors, shareholders or owners of the Client.
- RIGHT OF SUBROGATION
- In the event any of the Guarantors make any payment in respect to an obligation of the Client whether under a guarantee or indemnity or otherwise, the Guarantors will not exercise any rights of subrogation against any other Guarantors or the Client unless and until Strathmores has been paid in full.
- In the event of the Client going into liquidation, the Guarantors will be prohibited from proving in competition with the Client unless Strathmores has been paid in full.
- INSOLVENCY OF CLIENT
- No sum of money which the Client pays to Strathmores and Strathmores later pays is obliged to pay, allows in account or is obliged to allow in account to a liquidator, administrator, receiver or trustee in bankruptcy of the Client by reason of the Corporations Act 2001, Bankruptcy Act 1966 or otherwise will, for the purpose of this Guarantee, be considered as discharging or diminishing the Guarantors’ liability and this Guarantee and indemnity will continue to apply as if the said sum(s) had at all times remained owing by the Client.
- Strathmores is at liberty from time to time to charge the account of the Client with charges and expenses, legal or otherwise that Strathmores incurs in connection with the account of the Client and/or this guarantee and indemnity and the same will be part of the monies secured by this Agreement.
|Signed, sealed and delivered by the guarantor||Signature|
|Signed, sealed and delivered by the guarantor||Signature|
- The Guarantors agree to pay Strathmores’ costs and disbursements incurred in recovering monies secured by this Agreement, including debt recovery agency fees and legal costs on an indemnity basis.
- The Guarantors appoint as their duly constituted attorney Strathmores’ company secretary from time to time to execute in the Guarantors’ names and as the Guarantors’ act and Agreement any real property mortgage, bill of sale or consent to any caveat Strathmores may choose to lodge against real property that the Guarantors may own in any Land Titles Office in any state or territory of Australia, even though the Guarantors may not have defaulted in carrying out their obligations hereunder.
- The Guarantors authorise Strathmores to give time or any other indulgence or consideration to the Client in respect of compliance with its obligations to Strathmores, even if giving time or any other indulgence or consideration has the effect of increasing the Guarantors’ liability under this Guarantee and indemnity.
- The Guarantors agree that this Guarantee and Indemnity will not be avoided, released or affected by Strathmores making any variation or alteration in the terms of its Agreement(s) with the Client, even if such variation or alteration has the effect of increasing the Guarantors’ liability under this guarantee and indemnity.
- If any provision of this guarantee and indemnity is not enforceable in accordance with its terms, other provisions which are self-sustaining are and continue to be enforceable in accordance with their terms.
- The Guarantors charge in favour of Strathmores all of their estate and interest in any real property that the Guarantors own at present and in the future with the amount of their indebtedness hereunder until discharged, such indebtedness to include all amounts referred to in clauses 3.1 and 3.2.
- The Guarantors charge in favour of Strathmores all of their estate and interest in any personal property that the Guarantors own at present and in the future with the amount of their indebtedness hereunder until discharged, including amounts referred to in clauses 3.1 and 3.2.
- This guarantee and indemnity secures the repayment of all monies owed by the Client whatsoever, and this Agreement constitutes the entire guarantee.
- Where the Guarantors have previously entered into an agreement with Strathmores by which the Guarantors have granted a charge, mortgage or other security over real or personal property, those charges, mortgages or other security interests will continue and co-exist with the obligations and security interests created in this heed and will secure all indebtedness and obligations of the Guarantors under this Agreement. Strathmores may, at its election, vary the terms of such previous charge, mortgages or other securities to reflect the terms herein.
- PERSONAL PROPERTIES SECURITIES ACT
- For the avoidance of any doubt, the security interest(s) created by this instrument in favour of Strathmores constitutes security pursuant to the Personal Properties and Securities Act 2009.
- The Guarantors waive any right or entitlement to receive notice of the registration of any security interest(s) created by this instrument on the Personal Property Securities Register.
- SERVICE OF NOTICES
- The Guarantors agree to accept service of any document required to be served, including any notice under this Agreement or the PPSA or any originating process, by prepaid post at any address nominated in this application or any other address later notified to Strathmores by the Guarantors or the Guarantors’ authorised representative.
- PRIVACY ACT
- The Guarantors agree to the terms of the Privacy Statement pursuant to the Privacy Act 1988 (as amended by the Privacy Amendment (Enhancing Privacy Protection) Act 2012 contained in this document