RECOUP Contractor Debt Recovery Terms Of Engagement

Terms of Engagement – Debt Recovery Assistance & General Consultancy
1 Establishment of agreement and appointment
1.1 Establishment of agreement
Thank you for choosing RECOUP Debt Recovery Pty Ltd (ABN 72 153 203 840) (RECOUP) as your consultant to provide the Services. The terms and conditions that are set out below are the conditions under which RECOUP will provide the Services to you.
In this document, words beginning with a capital letter that are defined in clause 8 have the meaning ascribed to them in that clause.
You acknowledge and agree that this document only applies to the Services and is separate from any other document entered into between You and RECOUP.
1.2 Appointment
Upon commencement of our engagement:
(1) You appoint RECOUP as your Consultant and Agent to provide the Services; and
(2) RECOUP accepts its appointment as a Consultant and Agent and agrees to provide the Services to You, on the terms set out in this document.
1.3 Term of appointment
The appointment referred to in clause 1.2 will continue until this document ends.
1.4 Your obligations
You must:
(1) provide all necessary information and documents to RECOUP in order to enable it to provide the Services; and
(2) comply with the terms of this document in full.
2 Obligations of RECOUP (the Services)
(1) RECOUP will:
(a) provide specialist services such as preparation of payment claims, statutory notices, adjudication applications and supporting submissions under the relevant state based Security Of Payment Legislation as required and as prescribed in but not limited to the Fee Agreement.
(b) provide a recommendation to You as to an appropriate Solicitor to assist you with any legal services you may require to recover the Debt;
(c) liaise with a Solicitor chosen by You (regardless of whether it is the one (1) recommended by RECOUP or not) with respect to the terms of any engagement of that Solicitor by You;
(d) provide You with advice as to the proposed terms of the retainer by that Solicitor;
(e) provide You with any assistance necessary in order to allow You to engage that Solicitor with respect to the recovery of the Debt; and
(f) provide You with ongoing advice and assistance as agreed between You and RECOUP in order to assist You with any Claim made by You through RECOUP and or a Solicitor for the recovery of the Debt.
(g) provide general consultancy services in respect of your claim, and general consultancy services in respect of contract administration as required in relation to the construction contract between You and your client, and or your business generally.
(h) provide you with debt collection services such as entering judgement onto the Court record and subsequent enforcement processes
(2) You acknowledge and agree that:
(a) RECOUP does not receive any payment or other benefit from any Solicitor it recommends to You;
(b) RECOUP has no liability to You or Your Solicitor with respect to Your engagement of that Solicitor;
(c) You are not obliged to engage the Solicitor recommended by RECOUP, or any Solicitor at all; and
(d) RECOUP does not guarantee that the Debt will be recovered by you as a result of the provision of the Services to you;
(e) RECOUP does not warrant the services provided to You by any Solicitor engaged by You; and
(f) RECOUP does not provide legal services or legal advice in relation to the recovery of the Debt.
3 Payments
3.1 Payment
In consideration of RECOUP providing the Services to you, you must pay RECOUP the fee for the Services agreed between us from time to time. You acknowledge and agree that this includes a Success Fee which unless otherwise stated will be 5% + GST of the Recovered Amount.
3.2 Success Fee
(1) For the purpose of this document, a Success Fee is payable in any of the circumstances in which:
(a) RECOUP or You receives part or full payment of the debt by the Debtor, and or;
(b) Upon reaching an agreement with Your Debtor to settle Your Claim for the Debt with the Debtor, and or;
(c) Your Claim for the Debt is otherwise resolved by an adjudication determination, a judicial decision or an award pursuant to which You are given a right to receive payment, compensation or damages.
(2) You acknowledge and agree that the Success Fee is payable notwithstanding:
(a) that this document is terminated after You initially instruct a Solicitor with respect to Your Claim for the recovery of the Debt, and or;
(b) you terminate Your instructions to that Solicitor and either do or do not engage a replacement Solicitor.
3.3 General Consultancy
You will be liable to pay an hourly rate of $200.00 + GST per hour for general consultancy services provided by RECOUP which is not a specific service included in the Fee Agreement.
3.4 Debtor pays you directly
If a Debt is paid directly to you, in whole or in part, by a Debtor then:
(1) you must notify RECOUP within one (1) business day of that Debt being paid to prevent RECOUP from incurring any further costs and fees on your behalf; and
(2) you will remain responsible for any monies payable to RECOUP under this document with respect to the Services performed by it on your behalf.
3.5 Authority for Debtor to pay RECOUP directly
(1) You grant an irrevocable authority to RECOUP to receive a Debt payment of the Debt, in whole or in part, directly from a Debtor and to hold that payment in the trust account of RECOUP on your behalf to be used in accordance with paragraph (2) below.
(2) If payment of a Debt is paid directly to RECOUP in accordance with paragraph (1) above RECOUP will:
(a) provide you with written notice within seven (7) days of receiving the payment;
(b) deduct from that payment any monies payable to RECOUP under this document with respect to the Services performed by it on your behalf; and
(c) release the remaining amount of monies to you.
(3) If requested by RECOUP You must sign an irrevocable authority directed to either or both of the Debtor, or Your Solicitor, directing them to pay the Debt to RECOUP to be dealt with in accordance with paragraph (1).
3.6 Terms of payment
(1) If we ask you for a payment before we begin performing the Services, we will not begin performing the Services until that payment is paid. You grant an irrevocable authority to RECOUP to:
(a) hold any such payment in its trust account on account of its costs and disbursements for the provision of the Services from time to time; and
(b) deduct any monies payable to RECOUP from time to time under this document with respect to the Services performed by it on your behalf including the Success Fee.
(2) RECOUP will provide you with a tax invoice for the provision of the Services from time to time.
(3) You must pay RECOUP:
(a) within the time stipulated on the invoice provided to you by RECOUP; or
(b) if there is no such date on the invoice, within seven (7) days from the date of the invoice.
(c) in respect of payment due for a Success Fee for a Successful Outcome resulting from a settlement agreement reached between You and your client; the Success Fee is payable within seven (7) days of reaching that settlement agreement
(4) Interest will be payable on any amount not paid by the due date at the rate of ten percent (10%) per annum, calculated daily from the due date for payment until the overdue amount is paid by you.
(5) If you are a Company Director of the Creditor entering into this agreement with RECOUP you warrant that you guarantee full payment of all invoices and interest on overdue payments relating to the provision of the Services provided to your company by RECOUP.
3.7 Suspension of the Services by RECOUP
If you fail to comply with any term of this document then RECOUP may from time to time and without notice suspend the provision of the Services until that non-compliance is rectified. You cannot make any Claim against RECOUP for anything arising out of any such suspension.
3.8 Lien
RECOUP will be entitled to withhold all documents relating to the Services in the event you fail to pay any amount under this document.
4 Warranties, indemnities and limitations
4.1 Warranties
You warrant that:
(1) the details, documents and other information supplied by you to RECOUP with respect to the Debt are at all times true, accurate and correct;
(2) you have obtained the necessary consents in satisfaction of the Privacy Act 1988 (Cth) from the Debtor to enable RECOUP to collect, retain, use and disclose personal information about the Debtor in the course of providing the Services; and
(3) no bona fide dispute exists in relation to the Debt.
4.2 Indemnity
You must indemnify RECOUP against any Claim:
(1) relating to the performance by RECOUP of its obligations under this document;
(2) resulting from your fraudulent, negligent or unlawful behaviour;
(3) relating to the information and other materials provided to RECOUP by you; and/or
(4) resulting from a breach of the terms of this document by you.
And if you are a Company Director of the Creditor entering into this agreement with RECOUP you agree to indemnify RECOUP against any loss in respect of payment of RECOUP’s fees your company may be liable for.
4.3 Limitation of liability
You acknowledge and agree that RECOUP will not be liable for any Claim (including but not limited to consequential losses such as loss of profits or loss of business) suffered by you in connection with the provision of the Services.
5 Confidential Information
5.1 Non-disclosure
A party must not disclose Confidential Information disclosed to it by the other party except:
(1) with the prior written consent of the disclosing party;
(2) in accordance with the terms of this document; and
(3) in the case of RECOUP, in order to conduct the Services.
5.2 Exceptions to non-disclosure
A party may disclose Confidential Information that has been disclosed to it:
(1) where such disclosure is made to those of its employees, professional advisers, related bodies corporate and shareholders who have a need to know (and only to the extent each has a need to know) and are aware and agree that the information that is to be disclosed must be kept confidential;
(2) which, at the time of disclosure, is within the public domain; or
(3) where required by law or any order of any court, tribunal, authority or regulatory body.
6 Termination
(1) RECOUP may terminate this document at any time by notice in writing to you.
(2) You may terminate this document by providing twenty eight (28) days notice in writing to RECOUP. You acknowledge and agree that any and all outstanding fees including the Success Fee (if applicable) will remain payable to RECOUP notwithstanding that this document has been terminated for any reason.
7 Miscellaneous
7.1 Assignment
(1) You cannot transfer or otherwise assign your rights and obligations under this document without the prior written consent of RECOUP.
(2) RECOUP may assign its rights and obligations under this document at any time by notice in writing to you to that effect
7.2 Unenforceability
If any term of this document is rendered illegal or unenforceable it may be severed from this document and the remaining terms will continue in force.
7.3 Notices and communications
A notice, consent or other communication given to a party under this agreement must be treated as having been duly given and received:
(1) if handed to the party’s representative, immediately;
(2) if delivered to a party’s address, on the day of delivery;
(3) if sent by pre-paid mail, on the second day after posting;
(4) if transmitted by facsimile to a party’s facsimile number and a correct and complete transmission report is received, on the day of transmission; or
(5) if transmitted by e-mail or other electronic means, on the day of transmission.
7.4 Governing law
The laws of the State of New South Wales governs this document.
8 Definitions
Agent

Claim your authorised representative for the purposes of recovery of the debt owed to You by the Debtor
against any person any allegation, action, demand, cause of action, suit, proceeding, judgement, debt, damage, loss, cost, expense or liability howsoever arising and whether present or future, fixed or unascertained, actual or contingent whether at law, in equity, under statute or otherwise.
Confidential Information means:
(a) this document;
(b) financial information: information regarding costs, profits, markets, sales and other financial information;
(c) business information: information regarding business relationships and strategies, development plans, marketing, product concepts, trade secrets and other business information the business of the disclosing party and the disclosing party’s clients or third party suppliers; and
(d) personal information: any personal information relating to the officers (as defined in s9 of the Corporations Act 2001), partners, employees, agents, contractors or clients of the disclosing party;
(e) information obtained through performance: all information which becomes known to a party as a consequence of it performing the obligations under this document including (without limitation) all records, documents, accounts, plans, specifications, price lists, customer lists, correspondence, photos and papers of every description relating to the disclosing party;
(f) disclosed information: any other information disclosed by a disclosing party that:
(i) is identified as being confidential; or
(ii) would be apparent to a reasonable person that such information was disclosed in confidence by the disclosing party.
Consultant

Debt means the company RECOUP who will provide professional and expert advice:
means the amount due and payable to You by the Debtor.
Debtor

Fee Agreement

Recovered Amount
Security Of Payment Legislation means the person, company or other entity from whom a debt is to be recovered by You with the assistance of RECOUP.
is the first page of this document and titled “Fee Agreement for Debt Recovery Assistance” that names the entities that are the creditor and the debtor, that sets out some specific services and the rates of those services, that outlines the debt recovery process to be undertaken
is the amount received by RECOUP, or You, in satisfaction of the Debt, or the amount agreed as the settlement sum by You and the Debtor, or the amount awarded to You by an Adjudicator, Assessor, Magistrate, Judge, Mediator, Abitrator, Appointed Expert.
is:
a) Building And Construction Industry Security Of Payment Act 1999 (Nsw)
b) Building And Construction Industry Payments Act 2004 (Qld)
c) Building And Construction Industry Security Of Payment Act 2002 (Vic)
d) Building And Construction Industry Security Of Payment Act 2009 (Sa)
e) Building And Construction Industry (Security Of Payment) Act 2009 (Act)
f) Building And Construction Industry Security Of Payment Act 2009 (Tas)
Services

Successful Outcome means the services RECOUP agrees to provide to you from time to time including the services set out in clause 2.
means:
a) RECOUP or You receives part or full payment of the debt by the Debtor, and or;
b) You negotiate Your Claim for the Debt with the Debtor and You reach a settlement agreement with your debtor, and or;
c) Your Claim for the Debt is otherwise resolved by an adjudication determination, a judicial decision or an award pursuant to which You receive payment, compensation or damages.
Success Fee

You means any amount agreed to be paid to RECOUP in addition to the fee for the Services and calculated as a percentage of the Recovered Amount.
means either a natural person, a corporation or organisation whom is the Creditor to the Debtor

RECOUP Contractor Debt Recovery Terms Of Engagement

Terms of Engagement – Debt Recovery Assistance

1             Establishment of agreement and appointment

1.1          Establishment of agreement

Thank you for choosing RECOUP Debt Recovery Pty Ltd (ABN 72 153 203 840) (RECOUP) as your consultant to provide the Services.  The terms and conditions that are set out below are the conditions under which RECOUP will provide the Services to you.

In this document, words beginning with a capital letter that are defined in clause 8 have the meaning ascribed to them in that clause.

You acknowledge and agree that this document only applies to the Services and is separate from any other document entered into between You and RECOUP.

1.2          Appointment

Upon commencement of our engagement:

(1)           you appoint RECOUP as your consultant to provide the Services; and

(2)           RECOUP accepts its appointment as a consultant and agrees to provide the Services to you,

on the terms set out in this document.

1.3          Term of appointment

The appointment referred to in clause 1.2 will continue until this document ends.

1.4          Your obligations

You must:

(1)           provide all necessary information and documents to RECOUP in order to enable it to provide the Services; and

(2)           comply with the terms of this document in full.

2             Obligations of RECOUP

(1)           RECOUP will:

(a)           provide a recommendation to you as to an appropriate Solicitor to assist you with any Claim you may have to recover the Debt (including any possible class action);

(b)           liaise with a Solicitor chosen by You (regardless of whether it is the one (1) recommended by RECOUP or not) with respect to the terms of any engagement of that Solicitor by You;

(c)           provide You with advice as to the proposed terms of the retainer by that Solicitor;

(d)           provide you with any assistance necessary in order to allow You to engage that Solicitor with respect to the recovery of the Debt; and

(e)           provide You with ongoing advice and assistance as agreed between You and RECOUP in order to assist You with any Claim made by You through a Solicitor for the recovery of the Debt.

(2)           You acknowledge and agree that:

(a)           RECOUP does not receive any payment or other benefit from any Solicitor it recommends to You;

(b)           RECOUP has no liability to You or Your Solicitor with respect to Your engagement of that Solicitor;

(c)           You are not obliged to engage the Solicitor recommended by RECOUP, or any Solicitor at all; and

(d)           RECOUP does not guarantee that the Debt will be recovered by you as a result of the provision of the Services to you;

(e)           RECOUP does not warrant the services provided to You by any Solicitor engaged by You; and

(f)            does not provide legal services or legal advice in relation to the recovery of the Debt.

3             Payments

3.1          Payment

In consideration of RECOUP providing the Services to you, you must pay RECOUP the fee for the Services agreed between us from time to time. You acknowledge and agree that this includes a Success Fee.

3.2          Success Fee

(1)           For the purpose of this document, a Successful Outcome with respect to the recovery of the Debt is an outcome in which You settle Your for the Debt or Your Claim for the Debt is otherwise resolved by a judicial decision or an award pursuant to which You receive compensation or damages.

(2)           You will not be liable for the Success Fee unless You achieve a Successful Outcome. You acknowledge and agree that the Success Fee is payable notwithstanding:

(a)           that this document is terminated after You initially instruct a Solicitor with respect to Your Claim for the recovery of the Debt; and

(b)           you terminate Your instructions to that Solicitor and either do or do not engage a replacement Solicitor.

3.3          General Consultancy

You will be liable to pay an hourly rate of $200.00 + GST per hour for general consultancy work completed which is not a specific service included in the Fee Agreement.

3.4          Debtor pays you directly

If a Debt is paid directly to you, in whole or in part, by a Debtor then:

(1)           you must notify RECOUP within one (1) business day of that Debt being paid to prevent RECOUP from incurring any further costs and fees on your behalf; and

(2)           you will remain responsible for any monies payable to RECOUP under this document with respect to the Services performed by it on your behalf.

3.5          Authority for Debtor to pay RECOUP directly

(1)           You grant an irrevocable authority to RECOUP to receive a Debt payment of the Debt, in whole or in part, directly from a Debtor and to hold that payment in the trust account of RECOUP on your behalf to be used in accordance with paragraph (2) below.

(2)           If payment of a Debt is paid directly to RECOUP in accordance with paragraph (1) above RECOUP will:

(a)           provide you with written notice within seven (7) days of receiving the payment;

(b)           deduct from that payment any monies payable to RECOUP under this document with respect to the Services performed by it on your behalf; and

(c)           release the remaining amount of monies to you.

(3)           If requested by RECOUP You must sign an irrevocable authority directed to either or both of the Debtor, or Your Solicitor, directing them to pay the Debt to RECOUP to be dealt with in accordance with paragraph (1).

3.6          Terms of payment

(1)           If we ask you for a payment before we begin performing the Services, we will not begin performing the Services until that payment is paid. You grant an irrevocable authority to RECOUP to:

(a)           hold any such payment in its trust account on account of its costs and disbursements for the provision of the Services from time to time; and

(b)           deduct any monies payable to RECOUP from time to time under this document with respect to the Services performed by it on your behalf including the Success Fee.

(2)           RECOUP will provide you with a tax invoice for the provision of the Services from time to time.

(3)           You must pay RECOUP within:

(a)           the time stipulated on the invoice provided to you by RECOUP; or

(b)           if there is no such date on the invoice, fourteen (14) days from the date of the invoice.

(4)           Interest will be payable on any amount not paid by the due date at the rate of ten percent (10%) per annum, calculated daily from the due date for payment until the overdue amount is paid by you.

(5)           If you are a Company Director of the Creditor entering into this agreement with RECOUP you warrant that you guarantee full payment of all invoices relating to the provision of the Services provided to your company by RECOUP.

3.7          Suspension of the Services by RECOUP

If you fail to comply with any term of this document then RECOUP may from time to time and without notice suspend the provision of the Services until that non-compliance is rectified. You cannot make any Claim against RECOUP for anything arising out of any such suspension.

3.8          Lien

RECOUP will be entitled to withhold all documents relating to the Services in the event you fail to pay any amount under this document.

4             Warranties, indemnities and limitations

4.1          Warranties

You warrant that:

(1)           the details, documents and other information supplied by you to RECOUP with respect to the Debt are at all times true, accurate and correct;

(2)           you have obtained the necessary consents in satisfaction of the Privacy Act 1988 (Cth) from the Debtor to enable RECOUP to collect, retain, use and disclose personal information about the Debtor in the course of providing the Services; and

(3)           no bona fide dispute exists in relation to the Debt.

4.2          Indemnity

You must indemnify RECOUP against any Claim:

(1)           relating to the performance by RECOUP of its obligations under this document;

(2)           resulting from your fraudulent, negligent or unlawful behaviour;

(3)           relating to the information and other materials provided to RECOUP by you; and/or

(4)           resulting from a breach of the terms of this document by you.

4.3          Limitation of liability

You acknowledge and agree that RECOUP will not be liable for any Claim (including but not limited to consequential losses such as loss of profits or loss of business) suffered by you in connection with the provision of the Services.

5             Confidential Information

5.1          Non-disclosure

A party must not disclose Confidential Information disclosed to it by the other party except:

(1)           with the prior written consent of the disclosing party;

(2)           in accordance with the terms of this document; and

(3)           in the case of RECOUP, in order to conduct the Services.

5.2          Exceptions to non-disclosure

A party may disclose Confidential Information that has been disclosed to it:

(1)           where such disclosure is made to those of its employees, professional advisers, related bodies corporate and shareholders who have a need to know (and only to the extent each has a need to know) and are aware and agree that the information that is to be disclosed must be kept confidential;

(2)           which, at the time of disclosure, is within the public domain; or

(3)           where required by law or any order of any court, tribunal, authority or regulatory body.

6             Termination

(1)           RECOUP may terminate this document at any time by notice in writing to you.

(2)           You may terminate this document by providing twenty eight (28) days notice in writing to RECOUP.  You acknowledge and agree that the Success Fee (if applicable) will remain payable to RECOUP notwithstanding that this document has been terminated for any reason.

7             Miscellaneous

7.1          Assignment

(1)           You cannot transfer or otherwise assign your rights and obligations under this document without the prior written consent of RECOUP.

(2)           RECOUP may assign its rights and obligations under this document at any time by notice in writing to you to that effect

7.2          Unenforceability

If any term of this document is rendered illegal or unenforceable it may be severed from this document and the remaining terms will continue in force.

7.3          Notices and communications

A notice, consent or other communication given to a party under this agreement must be treated as having been duly given and received:

(1)           if handed to the party’s representative, immediately;

(2)           if delivered to a party’s address, on the day of delivery;

(3)           if sent by pre-paid mail, on the second day after posting;

(4)           if transmitted by facsimile to a party’s facsimile number and a correct and complete transmission report is received, on the day of transmission; or

(5)           if transmitted by e-mail or other electronic means, on the day of transmission.

7.4          Governing law

The laws of the State of New South Wales governs this document.

8             Definitions

Claim against any person any allegation, action, demand, cause of action, suit, proceeding, judgement, debt, damage, loss, cost, expense or liability howsoever arising and whether present or future, fixed or unascertained, actual or contingent whether at law, in equity, under statute or otherwise.
Confidential Information means:

(a)        this document;

(b)        financial information: information regarding costs, profits, markets, sales and other financial information;

(c)        business information: information regarding business relationships and strategies, development plans, marketing, product concepts, trade secrets and other business information the business of the disclosing party and the disclosing party’s clients or third party suppliers; and

(d)        personal information: any personal information relating to the officers (as defined in s9 of the Corporations Act 2001), partners, employees, agents, contractors or clients of the disclosing party;

(e)        information obtained through performance: all information which becomes known to a party as a consequence of it performing the obligations under this document including (without limitation) all records, documents, accounts, plans, specifications, price lists, customer lists, correspondence, photos and papers of every description relating to the disclosing party;

(f)         disclosed information: any other information disclosed by a disclosing party that:

(i)          is identified as being confidential; or
(ii)         would be apparent to a reasonable person that such information was disclosed in confidence by the disclosing party.
Debt means the amount due and payable to you by the Debtor.
Debtor means the person, company or other entity from whom a debt is to be recovered by you with the assistance of RECOUP.
Services means the services RECOUP agrees to provide to you from time to time including the services set out in clause 2.
Success Fee means any amount agreed to be paid to RECOUP in addition to the fee for the Services and calculated as a percentage of the Debt.