“ACS” means: Acorn Collection Services Pty Ltd.
“Commission Fees” means: The amount which represents the percentage rate prescribed in item 3 of the Schedule, of each and every Recovered Debt.
“Recovered Debt” means all payments or part payments of a Referred Debt, including payments or
part payments made directly to the Client, or Referred Debts deemed settled or otherwise compromised by the Client in accordance with this Agreement.
“Referred Debt” means a debt owned by the Client and which the Client refers to ACS for recovery.
The Client will pay to ACS:
a) Commission Fees upon payment or deemed payment / recovery of any Recovered Debt;
b) All external expenses reasonably incurred by ACS in the performance of the Services, where ACS has first obtained the Client’s approval to incur such external expenses;
c) Charges for Optional Services as follows:
I) the then prevailing commercial rate (taking into account location and other reasonable factors) for Field Calls, Repossessions and the like, made at the request of the Client; and
II) all costs and outlays in respect of legal action or proceedings, unless otherwise specified in item 3 of the Schedule; payable on issue of an invoice for same by ACS to the Client; and
d) The fees (if any) specified in item 3 of the Schedule, and, unless otherwise specified in item 3 of the Schedule, upon issue of an invoice for same by ACS to the Client.
2.2 Indemnity and Re-imbursement of Recovered Legal Costs
Where the parties have agreed that ACS will bear the costs of any legal action or proceedings, the Client will indemnify and reimburse ACS against and for all legal and professional costs and outlays incurred by ACS for and on behalf of the Client in respect of all legal action or proceedings where the Client is, or is entitled to be, awarded costs.
2.3 Defended Legal Proceedings
The Client is responsible for the payment of any professional costs and outlays awarded against the Client, or payable pursuant to the terms of a settlement arrangement authorised by the Client, in any defended legal proceedings, and indemnifies ACS in respect of same.
2.4 Withdrawal after Legal Proceedings Commenced
If the Client withdraws a Referred Debt, or instructs ACS to discontinue or cease to pursue legal action or proceedings for the recovery of a Referred Debt, after legal proceedings have been commenced, the Client is responsible for the payment or reimbursement of all legal and professional costs and outlays incurred and charged by lawyers engaged by ACS for and on behalf
of the Client, in addition to Commission Fees and other expenses and charges payable under this Agreement.
2.5 Goods and Services Tax
All Commission Fees and any other amounts payable to ACS under this Agreement do not include Goods and Services Tax (“GST”). In addition to all other amounts payable to ACS, the Client must and will pay to ACS any amount (“GST Amount”) which is payable by ACS on account of GST, as a consequence of any supply (“Relevant Supply”) made or deemed to be made under this Agreement. Any GST Amount payable by the Client in respect of any Relevant Supply is payable
at the same time as the consideration for the Relevant Supply. The expressions “consideration”, “GST” and “supply” shall have the same meaning as given to them in A New Tax System (Goods and Services Tax) Act 1999 of the Commonwealth of Australia, as amended.
2.6 Trust Account
All Moneys directly recovered by ACS (“Recovered Moneys”) will be paid into a trust account, and ACS will remit the Recovered Moneys to the Client at the end of each month in accordance with this Agreement. ACS shall be responsible for all bank fees, government taxes and duties arising from the operation of the trust account. The Client agrees that all Recovered Moneys are to be paid into ACS trust account. Where for any reason Recovered Moneys are paid directly to the Client, the Client agrees to credit ACS all Commission fees, GST Amounts and any other amounts, expenses and charges due and payable to ACS under this Agreement within 7 calendar days.
2.7 Direction for use of Recovered Moneys
This Agreement shall be deemed to constitute a written direction from the Client to ACS for the use and application of all Recovered Moneys in the manner provided for in this Agreement or as otherwise directed by the Client from time to time.
2.8 Authority to Deduct Amounts Payable
The Client hereby irrevocably authorises ACS to deduct and pay to itself from the Recovered Moneys, all Commission Fees, GST Amounts, and any other amounts, expenses and charges due and payable to ACS under this Agreement, at the end of each calendar month. ACS will remit the balance of Recovered Moneys to the Client within seven (7) days after the end of each month or as otherwise agreed. This sub clause does not apply where the manner of remission of
Recovered Debts is prescribed as “Gross” in item 3 of the Schedule.
2.9 Authority to Pay Fees and Charges from Moneys Held.
If an Event of Insolvency occurs, then all moneys payable by the Client pursuant to this Agreement shall be deemed due and payable by the Client to ACS on the day immediately before the Event of Insolvency, and ACS shall be immediately entitled to set-off deduct and pay to itself all such moneys from any Recovered Moneys held by ACS on behalf of the Client.
a) commencing legal action or proceedings; and / or
b) accepting from a Debtor a proposal of compromise, or a settlement of any Referred debt in an amount less than payment in full, or payment of any Referred Debt by instalments; unless otherwise agreed by the parties from time to time.
3.1 Referred Debts howsoever settled or compromised by the Client, including the return or acceptance of merchandise or product, are deemed to be Recovered Debts, and are subject to payment by the Client of Commission Fees, expenses and charges applicable at the time ACS receives notice from the Client or otherwise learns of that event.
3.2 Referred Debts credited or withdrawn by the Client are deemed to be Recovered Debts under this Agreement.
3.3 In the event that a Referred Debt is withdrawn, and there is any dispute over the payment of Commission Fees, ACS are entitled, in the alternative, to remuneration on a Quantum Meruit basis at an hourly rate for work carried out in attempts to recover the Referred Debt. The hourly rate will
be $150.00 + GST. The parties agree to be bound by the Special Conditions (if
any) set out in the Annexure (if any)
a) provide the Services in a timely, proper and workmanlike manner;
b) ensure that its conduct and the conduct of its employees, agents, subcontractors and servants is ethical, honest and professional;
c) at the request of the Client, make available its records and provide the Client with copies of documents to allow the Client to satisfy itself that ACS has met its obligations under this
d) otherwise comply with its duties and obligations under this Agreement.
4.2 Keeping of Accounts, Availability for Audit ACS will at all times keep proper books of account of all receipted payments, transactions and dealings in connection with the Services. ACS will permit the Client, or its representatives, at all reasonable times and upon reasonable
notice to inspect and take copies of those books of account, including relevant receipts, invoices, correspondence and files in relation to Referred Debt.
ACS will comply in all respects with all Privacy legislation, Guidelines, Codes of Conduct, Regulations, and other legislation relevant to the Services, and will ensure that all of
its employees, agents, subcontractors and servants receive appropriate training and remain conversant with such requirements.
The Client warrants to ACS that all Referred Debts are, at the time of referral to ADR, due, owing and payable to the Client, and that the Client is not aware of any circumstances that may give rise to a sustainable defence, counter-claim, or set-off in relation to any Referred Debts.
5.2 Particulars of Referred Debts
At the time of referral of a Debt, the Client will provide ACS with full particulars of each Referred Debt, including:
a) the contractual rate of interest (if applicable);
b) an itemisation of principal, interest, and any other recoverable costs and charges; and
c) copies of all relevant documents, correspondence and particulars relating to any Referred Debt.
5.3 Privacy Laws
The Client warrants to ACS that all information concerning Debtors has been collected, obtained, used and disclosed in accordance with all relevant Privacy legislation, in particular, the National Privacy Principles under the Privacy Act (Cth), as amended.
5.4 Consumer Credit Laws
The Client warrants to ACS that it has observed and complied in all respects with its obligations (if any) under any applicable Consumer Credit legislation or Code in relation to each Referred Debt, and that all necessary notices, demands (if any) or otherwise required under any relevant Consumer Credit legislation or Code has been given to the Debtor or other party as required under the Consumer Credit legislation or Code or otherwise, and such notice or demand period there
under has expired before referral to ACS.
6.2 In any matter where, under the terms of this Agreement, the Client is liable to pay legal costs, those legal costs shall be
a) For commencement of and carrying on of undefended matters, in accordance with the relevant court scale of fees and charges in the state where action or proceedings are taken, or as notified for any document not having a scale fee.
b) For defended matters, including where a request for particulars is filed, or a motion to set aside a defence is filed (or imminent), in accordance with the fees as indicated by the nominated legal firm, and advised by ACS.
6.3 If in any legal proceedings, the Debtor or other party to the proceedings, raises a valid defence, counterclaim, or set-off:
a) The Client will provide ACS, and the lawyers engaged by ACS in relation to the proceedings, with all original documents, statements, records, information reasonably required to conduct the proceedings, and will cooperate fully with any enquiries undertaken by ACS and such lawyers; and
b) ACS will promptly advise the Client of any trial date, and will give the Client reasonable notice of witnesses, documents and other requirements for the trial or any other step in the proceedings.
information where it is reasonably necessary to do so for the purposes of providing the Services.