Authority to act form

AUTHORITY TO ACT FORM – AGREEMENT TO APPOINT MERCANTILE AGENT

 

 

BINATE GROUP PTY LTD T/AS BINATE GROUP ACN 661 474 291 (“the Mercantile Agent”)

 

BACKGROUND

 

A.         The Client agrees to engage the Mercantile Agent to recover debts owed to the Client as set out in clause 3 of this Agreement (“the Agreement”).

 

B.         The Client agrees that they engage the Mercantile Agent exclusively and that no other agencies, corporations, sole traders or employees of the Client have been given authority to provide the Services to the Client.

 

C.         The Client agrees to refrain from further recovery action and receiving payment of the Debt on the terms set out in the Agreement.

 

AGREED TERMS

 

1.     Interpretation

 

1.1  General

 

(a)        Reference to:

 

(i)          The singular includes plural and the plural includes the singular;

 

(ii)         A Party includes the Party’s executors, administrators, successors and permitted assigns;

 

(iii)       A thing includes the whole and each part of it separately;

 

(iv)       A statute, regulation, code or other law or a provision of any of them includes:

 

(A)       Any amendment or replacement of it; and

 

(B)       Another regulation or other statutory instrument made under it, or made under it as amended or replaced; and

 

(v)        Dollars means Australian dollars, unless otherwise stated.

 

(b)        “Including” and similar expressions are not words of limitation.

 

(c)        Where a word or expression is given a particular meaning, other parts of speech and grammatical forms of that word or expression have a corresponding meaning.

 

(d)        Headings are for convenience only and do not form part of this Agreement or affect its interpretation.

 

(e)        A provision of the Agreement must not be construed to the disadvantage of a Party merely because that Party was responsible for the preparation of the Agreement or the inclusion of the provision in the Agreement.

 

1.2  Parties:

 

(a)        If a Party consists of more than one person, this Agreement binds each of them separately and any two or more of them jointly.

 

(b)        An obligation, representation or warranty in favour of more than one person is for the benefit of them separately and jointly.

 

(c)        A Party holds the benefit of any release or indemnity provided in this Agreement on behalf of themselves and for the benefit of that Party’s present and former officers, employees and agents.

 

2      Commencement Date and Duration

 

2.1  This agreement shall take effect from the date that the Mercantile Agent first received the Client’s instructions to act, even if that date preceded this agreement.

 

2.2       This agreement shall remain in force until it is terminated by either party in accordance with the terms of clause 11 of this agreement.

 

 

3      Collection Services

 

  1.1          

  2.1          

  3.1         The Mercantile Agent may use its discretion to undertake any or all the following actions, without limitation, to recover the nominated debts as per this agreement:

 

a)    Skip Tracing;

 

b)    Engage in Verbal Correspondence;

 

c)     Engage in Written Correspondence;

 

d)    Negotiate with the Debtor;

 

e)    Enter into Payment Arrangements with the Debtor;

 

f)      Instruct Field Agents to conduct Field Calls;

 

g)    Commence Proceedings or instruct and agent to Commence Proceedings on behalf of the Client in the relevant jurisdiction;

 

h)    Enforce or instruct and agent to enforce on behalf of the Client any Judgments or Orders made; and

 

i)      Take any other reasonable steps to recover any debts for the Client.

 

3.2  The Mercantile Agent will not proceed with any actions set out in clause 3.1(f), 3.1(g) or 3.1(h) without receiving written confirmation of instructions from the Client to do so.

 

 

4      Authority and Appointment

 

4.1  The Client authorizes and appoints the Mercantile Agent to provide the Services exclusively.

 

4.2  The Mercantile Agent accepts the appointment and agrees to provide the Services.

 

 

5      Instructions for Collection

 

5.1  The Client must provide the Mercantile Agent with all documentation and information that is considered reasonable to provide the Services.                                                                   

5.2  Reasonable documentation and information may include but is not limited to:

 

a)    Tax invoices;

 

b)    Statements;

 

c)     Proof of Work;

 

d)    The Client’s Nominated Bank Account Details; and

 

e)    Debtor Contact Details.

 

5.3  The Client warrants that all information and documentation provided by the Client to the         Mercantile Agent are true and correct.

 

5.4  The Client may provide any information and documentation via post, electronic mail, by hand to a representative of the Mercantile Agent unless otherwise agreed.

 

6      Payment of Debt

 

6.1 The Client agrees that should they receive payment directly from a debtor that the Mercantile Agent has been engaged to pursue, the Client will within one (1) business day:

 

a)    Notify the Mercantile Agent in writing that the debtor has made a payment; and

b)    Instruct the Mercantile Agent to close their file and render an invoice in accordance with the attached Schedule A.

 

6.2 The Mercantile Agent agrees that should they receive payment directly from a debtor that the Mercantile Agent has been engaged to pursue, they will within seven (7) business days:

 

a)    Notify the Client in writing that the debtor has made a payment;

b)    Render an invoice in accordance with the attached Schedule A; and

c)     Pay the monies to the Client’s nominated Bank Account via electronic transfer.

 

6.3 The Client understands that it must provide written confirmation of their nominated Bank Account Details in accordance with clause 5.2(d).

 

6.4 The Client agrees that once a debt has been nominated and submitted to the Mercantile Agent, any subsequent payment made by the debtor to the client will be subject to the commission structure as outlined in the attached Schedule A of this Agreement.

 

6.5 The Client authorizes the Mercantile Agent to deduct any applicable commission rates inclusive of GST from the client’s money prior to the monies disbursement from the Mercantile Agent’s bank account into the Client’s nominated bank account.

 

7      Costs

 

7.1 The Mercantile Agent’s costs to complete the work are detailed in the attached Schedule A.

 

7.2 The Client agrees to pay the Mercantile Agent in accordance with the attached Schedule A.

 

7.3 In addition to the costs set out in the attached Schedule A, the Client will pay all costs/outlays properly incurred by the Mercantile Agent. These will include search fees, courier fees, the cost of expert consultants, filing and lodgement fees, process server and investigator fees, postage, Solicitor’s fees, Barrister’s fees, court fees.

 

7.4 The Client expressly authorises the Mercantile Agent to incur these costs on behalf of the Client.  However, the Mercantile Agent must seek express approval from the Client to incur any individual item of outlay which might reasonably be expected to exceed $200.00 plus GST.

 

8      Terms of Trade

 

8.1 The Client agrees to the Mercantile Agent’s terms of trade being strictly payable on invoice.

 

8.2 The Client hereby authorises the Mercantile Agent to settle any outstanding invoices relating to the client. Such settlement will be done by deducting the total invoice amounts from debtor monies collected on the client’s behalf and further held in the bank account of the Mercantile Agent. This is subject to the fact that sufficient debtor monies is available to pay the overdue invoice in full.

 

9      Privacy and Guidelines

 

9.1 The Mercantile Agent is bound by the Privacy Act 1988 including the Australian Privacy principles.

 

9.2 The Mercantile Agent operates within its authority to abide by the debt collection guidelines, the Privacy Act 1988 and any other laws, regulations or rules outlined by government law within the relevant jurisdiction

 

10         Confidentiality

 

10.1 The parties agree that the terms of this Agreement and the facts and circumstances      which give rise to the Agreement are to be kept confidential and not to be disclosed to any party other than:

 

(a)        For the purpose of obtaining professional advice, including legal or financial advice; and

 

(b)        To the extent that disclosure is required by law.

 

11       Ending arrangements

 

11.1 You may end our engagement by written notice in accordance with clause 8.3 of this Agreement, however you remain liable for the costs incurred up until that time. If you do not pay monies in accordance with the costs agreement, the Mercantile Agent may suspend work and may cease acting for you.

11.2 The parties must not make any disparaging comments at any time about each other and each party must take reasonable steps to ensure that its employees do not make any disparaging comments about each other.

11.3 The parties must give 14 days notice should they wish to end arrangements.

 

 

12         Own Enquiries

 

Each party warrants that it has relied on its own enquiries and is not entered into this Agreement in reliance on or as a result of any representation, promise, statement, conduct or inducement by or on behalf of the other party otherwise than has been recorded in this Agreement.

 

13         Notices

 

Each party agrees that in the event any document is to be provided or delivered to another party, such notices are to be provided to that party’s address for service in the Proceedings and can be provided electronically unless otherwise stated in this Agreement.

 

14         General

 

14.1 If any provision of this Agreement is prohibited, invalid or unenforceable in any jurisdiction, that provision will, as to that jurisdiction, be ineffective to the extent of the prohibition, invalidity or unenforceability without invalidating the remaining provisions of this Agreement or affecting the validity or enforceability of that provision in any other jurisdiction.

 

14.2 This Agreement may be executed in any number of counterparts and all of those counterparts taken together will be deemed to constitute the same instrument.

 

14.3 This Agreement is the entire agreement and understanding between the Parties and supersedes any prior agreement or understanding.

 

14.4 This Agreement is governed by the law in force in Victoria.

 

14.5 The Parties submit to the exclusive jurisdiction of the Courts of Victoria or any competent Federal Court exercising jurisdiction in Victoria.  The dispute must be determined in accordance with the law and practice applicable in the Court.

 

 

COSTS

 

Debt Amount	Fee
$0 - $2,000	18% of Amount Collected
$2,001 - $4,000	15% of Amount Collected
$4,001 - $10,000	12% of Amount Collected
$10,001+	10% of Amount Collected