TERMS & CONDITIONS

INTRODUCTION

In this Agreement, “Toughrecoveries”, “we”, “our” and “us” means St Invest Pty Ltd trading as Toughrecoveries and “you” means you whether in your personal capacity or as an authorized representative on behalf of another person, entity, or business.

DEFINITION OF TERMS


As used in this Agreement, the following terms will have the following meanings (whether in the singular or in the plural) unless the context requires otherwise:
(a) Agreement means the Service Agreement submitted by you to Toughrecoveries:

 

(i) by way of email to info@toughrecoveries.com and accepted by Toughrecoveries together with these Terms.
 

(b) Business Day means any day that is not a weekend (Saturday or Sunday), public
holiday in the country in which our Services are provided;

 

(c) Commission means the commission rates that Toughrecoveries charges you for the Services in respect of the contract between you and Toughecoveries. The Commission
charged is calculated on the total of each Debt in accordance with the rate table provided
on our proposal document.

 

(d) 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 whether in writing or otherwise concerning each of the parties or any of its clients, customers or suppliers;
 

(ii) any other information whether or not in a material form that concerns the business of either party which comes to the knowledge of the other party before or during the 4 period of this Agreement, or comes about in the course of, or in relation to the carrying out of either party’s obligations under this Agreement; and
 

(iii) any other information concerning either party which is not in the public domain;
 

(e) Debt(s) means the agreed value of the debt in Australian dollars (AUD) that the Debtor owes you as submitted by you with Toughrecoveries.
 

(f) Debtor means the person, business or entity which owes you the Debt as submitted by you with Toughrecoveries;
 

(g) Disbursements means any third-party costs or expenses we may incur in connection with the provision of the Services to you;
 

(h) Guarantor(s) means a person or persons who guarantee payment of all amounts payable by you to us under this Agreement and the performance of your obligations under this Agreement;
 

(i) Proposal means a document Toughrecoveries provides to you for review and consideration before the engagement of Toughrecoveries.
 

(j) Reporting Fees refers to fees incurred by Toughrecoveries as a result of running credit reports on Debtors.
 

(k) Services means debt recovery process to recover debts from your Debtors on your behalf but excludes any legal services;
 

(l) Tax Invoice means an invoice issued to you by us in respect of the Services which lists out the Commission charged on the sum of the Debt (or part thereof) recovered for the preceding month, any payable Reporting Fees or Disbursement Fees and


(m) Terms mean these Terms and Conditions of trade.

YOUR ACCEPTANCE


You accept these Terms (whether in your personal capacity or as an authorized representative on behalf of another person, entity, or business) when you:

(a) Submit an executed Service Agreement by way of email to info@toughrecoveries.com
 

(b) Consent to a credit check with a credit reporting body prior to provision of Toughrecoveries Services
 

(c) Consent to a Guarantor signing a Guarantee and Indemnity when requested by Toughrecoveries

APPOINTMENT AS YOUR AGENT


By accepting these Terms and submitting the Service Agreement to us, you appoint and authorize us to act as your agent and we agree to provide the Services in accordance with these Terms.


All Agreements are valid for a twelve (12) month period starting from the date the Service Agreement is submitted to Toughrecoveries. After this period, Toughrecoveries reserves the right to review the Terms of the Agreement which may be accepted or rejected by you, and if rejected this Agreement is at an end.
 

We reserve the right to refuse to act as your agent against any Debtor and may at any time, and for any reason, desist from acting for you in relation to any Debt.
 

As your agent, you expressly authorize us to:
 

(a) conduct necessary inquiries or searches;


(b) make necessary phone calls; and


(c) draft and send necessary correspondence.
 

We will not take any legal action against the Debtors unless we are instructed to do so by you.
 

As part of our Services, we generally request you cease contact with the debtors unless directed by us while we locate debtors, make telephone demands, instruct field agents, provide written demand upon your debtors, and any other business activities as needed from time to time.
 

By appointing us as your agents, you also authorize us to accept payments on your behalf from Debtors and deposit these payments into our trust account. We will charge Disbursements and Legal Fees in accordance with the current scales as provided upon request and all recoverable costs will be refunded to you by Toughrecoveries if and when
they are recovered from the Debtor.

 

As your agent, you agree and authorize us to engage and instruct solicitors at our discretion for enforcement and legal action. We will provide you with a copy of the solicitor’s costs disclosure for approval before formally instructing them. You will be responsible for any and all fees charged by the solicitor and/or their law firm.

SECURITY INTEREST


You agree and acknowledge that in order to secure payment of any and all amounts outstanding to us, we have a lien over all documents and deeds that belong to you and received by us while providing the Services, including any money that we are holding in our care on your behalf.

WARRANTIES


You warrant and covenant to Toughrecoveries that:
 

(a) if you are submitting a Service Agreement on behalf of another person, entity, or business, you are expressly authorized to do so;
 

(b) Toughrecoveries is the exclusive provider of the Services with respect to the Debt for the term of this Agreement;
 

(c) all information that you provide to us are true and correct and up-to-date and include all information relevant to the Debt; and
 

(d) you will not interfere with or impede the provision of the Services by Toughrecoveries.

OBLIGATIONS


In addition to your other obligations set out in the Agreement, you will:


(a) abdicate any and all communication with the Debtor for the period of time that the file is managed by us, unless otherwise directed by us;
 

(b) divert all Debtor communication to us unless otherwise directed by us;
 

(c) inform us immediately if any Debtor or its representative tries to communicate with you;
 

(d) inform us immediately if a Debt is paid to you whether directly by a Debtor or on behalf of the Debtor, whether in part or in whole;
 

(e) not compromise or negotiate on any Debt without first notifying us in writing;
 

(f) inform us immediately of any change to the balance outstanding on any Debt; and
 

(g) inform us immediately if there is any change to your contact details.

LITIGATION


You warrant and agree that you will make yourself available for any legal proceeding or hearing that is set down if any legal proceedings are defended by a Debtor. You acknowledge and agree that any legal proceedings will be brought in your name.

COMMISSION AND PAYMENT


You acknowledge and agree to pay us the Commission in consideration of our Services.
 

The Commission will be calculated based on the total Debt amount and it will be based on the current commission rate as of the date you submit the Service Agreement to us and it excludes the Reporting Fees, Disbursement or Legal Fees which you are responsible for paying in addition to the Commission charged for our Services.
 

The Commission will apply for all of the following circumstances from the commencement of this Agreement:


(a) on all payments received by us, our solicitors, agents, representatives at any time; and
 

(b) on all payments received by you, your solicitors, agents, representatives or insurers during the term of this Agreement.


Irrespective of whatever Services we might have performed 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 full or partly whether directly by the Debtor or by an entity acting on behalf of the Debtor;
 

(b) accept a return of goods, offset or credit in satisfaction of a Debt;
 

(c) breach any of your obligations as set out in this agreement; or
 

(d) withdraw your account within 60 days or no instructions received with us within 30 days from the date of:
 

(i) lodgment of the Debt;


(ii) the Debt being settled whether in whole or in part; or


(iii) the goods being returned.

 

Any Commission or Disbursement payable by you to Toughrecoveries 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.

DEFAULT


In the event that you fail to make payments for the amounts as set out in the Tax Invoice within 30 days of the date of the Tax Invoice, Toughrecoveries, 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) terminate or suspend the provision of Services without notice;
 

(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 Toughrecoveries including any additional collection costs;
 

(e) hold any refunds due to you until your account with Toughrecoveries is paid in full within the trading terms; and
 

In addition to this, you will be responsible for all collection costs, legal fees and disbursements which we may incur.

TERMINATION


Either party may terminate this Agreement after providing the other party a written notice to correct a material breach of the Agreement, and there remains a failure of the other party to remedy the breach.
 

In addition to this, Toughrecoveries reserves the right to terminate the Agreement at any time and for any reason.
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Upon termination, we are discharged from any further obligations under this Agreement.
 

Upon termination of this Agreement:
 

(a) you must make your payment obligations 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 TOUGHRECOVERIES 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.

CONFIDENTIAL INFORMATION


A party may only disclose Confidential Information:
 

(a) if the information is in the public domain as at the date this Agreement was accepted or afterward 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; or
 

(c) to any other person if the said person must become aware of it for the purposes of this Agreement on the basis that the person keeps the information confidential.

CONFIDENTIALITY


Both parties must keep the details of this Agreement confidential and shall only share the contents of this Agreement to its advisers for the purpose of enforcing or exercising the right granted under this Agreement or in order to comply under any law.

PRIVACY


Any personal information we disclose to you is subject to and will be handled In accordance with the Privacy Act 1988 (Cth) (Privacy Act) and the Australian Privacy Principles.
 

As part of providing the Services to you, we might disclose personal information and sensitive personal information about the Debtors (or people connected with the Debtors) to you. You agree that any information that we provide to you about the Debtors (or people connected with the Debtors) must be handled by you in accordance with the Privacy Act and the Australian Privacy Principles.


When you collect personal information or sensitive information about the Debtors (or people connected with the Debtors) and disclose such information to us, you agree that you have complied with the Privacy Act and the Australian Privacy Principles.

LIMITATION OF LIABILITY


We shall not be bound by any other covenants, representations, or warranties other than those specified in this Agreement. While Toughrecoveries does not purport to limit or otherwise affect the operation of State and Federal laws in Australia. You agree not to hold us liable for any loss, damage, or expense incurred (on either an express or an implied basis) from or by the acts of omissions of Toughrecoveries, its employees, agents, or solicitors while we act in accordance with the Terms of this Agreement. To the extent that certain laws cannot be excluded, restricted, or modified, these Terms must be read subject to any such laws.

INDEMNITY


You will defend, indemnify and hold Toughrecoveries, officers, directors, employees, consultants, representatives, and agents harmless from any and all losses, damages, judgments, suits, costs, and expenses (including litigation costs and reasonable attorneys & fees) 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) any misleading, false or insufficient details being supplied by you;
 

(c) any negligence or willful misconduct by you; and
 

(d) any third party claim, except third party claims as a result of or relating to our negligence, or our breach of this Agreement.

WAIVER


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.

SEVERABILITY


Each of these Terms are severable from the others and severance of terms will not affect any other term.

ENTIRE AGREEMENT


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.

JURISDICTION AND LAW


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 chose by us for any such legal proceeding, will govern these Terms.