SECURITY OF PAYMENT Services Terms Of Engagement

Terms of Engagement – Debt Recovery Assistance & General Consultancy and Authority for SECURITY OF PAYMENT Services to act as Agent

1 Establishment of agreement and appointment

1.1 Establishment of agreement

Thank you for choosing SECURITY OF PAYMENT Services (ABN 72 153 203 840) (“SOP SERVICES”) as Your consultant to provide the Services. The terms and conditions that are set out below are the conditions under which SOP SERVICES 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 SOP SERVICES.

1.2 Appointment

Upon commencement of our engagement:

(1) You appoint SOP SERVICES as Your Consultant and Agent to provide the Services; and
(2) SOP SERVICES 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 all the Services have been completed or the appointment is terminated under clause 6.

1.4 Your obligations

You must:

(1) provide all necessary information and documents to SOP SERVICES in order to enable it to provide the Services; and
(2) comply with the terms of this document in full.

2 Obligations of SOP SERVICES (the Services)

(1) SOP SERVICES will:

(a) provide specialist services such as demands for payment of debt(s), 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, preparation and management of statement(s) of claim and filing of same with a court.
(b) 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.
(c) provide You with debt collection services such as entering judgement onto the court record and subsequent enforcement processes.
(d) provide the services set out above in the manner that it considers to be in Your best interests without needing to get Your consent to each action it takes.

(2) You acknowledge and agree that:

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

3 Payments

3.1 Payment

In consideration of SOP SERVICES providing the Services to You, You must pay SOP SERVICES the fee for the Services agreed between us from time to time. You acknowledge and agree that in addition to paying SOP SERVICES fees for providing the Services You will pay SOP SERVICES 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 agreement, a Successful Outcome with respect to the recovery of the Debt is an outcome in which:

(a) SOP SERVICES or You receive part or full payment of the Debt by the Debtor, or
(b) You settle Your Claim for the Debt with the Debtor, 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) The Success Fee is payable within 3 business days of achieving a Successful Outcome. You will not be liable for the Success Fee unless You achieve a Successful Outcome

(3) You acknowledge and agree that the Success Fee is payable notwithstanding:

(a) that this agreement is terminated after You initially instruct SOP SERVICES with respect to Your Claim for the recovery of the Debt; or
(b) You terminate Your instructions to SOP SERVICES and either do or do not engage a replacement service.

3.3 General Consultancy

You will be liable to pay an hourly rate of $280.00 + GST per hour for general consultancy services provided by SOP SERVICES which is not a specific service included in the Fee Agreement. This general consultancy fee will be charged at $70.00 plus GST per 15 minute period or part thereof. To the extent permitted by law, general consultancy services fees may include charges for administrative fees for work done in connection with receipt of payments to SOP SERVICES’s trust account, disbursement of payments from SOP SERVICES’s trust account and any costs and fees incurred in the operation of SOP SERVICES’s trust account.

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 SOP SERVICES within one (1) business day of that Debt being paid;
(2) If You fail to advise SOP SERVICES of the payment as required in this clause You will be liable for any costs and fees incurred by SOP SERVICES on Your behalf and will indemnify SOP SERVICES against any claim by any person for compensation or damages for any actions SOP SERVICES has taken in pursuing recovery of Your Claim;
(3) You will remain responsible for any monies payable to SOP SERVICES under this agreement with respect to the Services performed by it on Your behalf.

3.5 Authority for Debtor to pay SOP SERVICES directly

(1) You grant an irrevocable authority to SOP SERVICES to receive payment of the Debt, in whole or in part, directly from the Debtor and to hold that payment in the trust account of SOP SERVICES on Your behalf and to deal with the payment in accordance with paragraph (2) below.

(2) If payment of a Debt is paid directly to SOP SERVICES in accordance with paragraph (1) above, or received by SOP SERVICES from any other entity, SOP SERVICES is authorised to and will:

(a) provide You with written notice within seven (7) days of receiving the payment;
(b) deduct from that payment any monies payable to SOP SERVICES under this agreement with respect to the Services performed by it on Your behalf including payment of any solicitor or barrister SOP SERVICES has engaged on Your behalf;
(c) pay any fees owing to any solicitor or barrister You have engaged to act on Your behalf; and
(d) release the remaining amount of monies to You.

(3) If requested by SOP SERVICES You must sign an irrevocable authority directed to either or both of the Debtor, or Your solicitor, directing them to pay the Recovered Amount to SOP SERVICES to be dealt with in accordance with paragraph 3.5(2).

3.6 Terms of payment

(1) If we ask You for a payment before we begin performing the Services, we are not required to begin performing the Services until that payment is paid. You grant an irrevocable authority to SOP SERVICES 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 SOP SERVICES from time to time under this document with respect to the Services performed by it on Your behalf including the Success Fee.

(2) SOP SERVICES will provide You with a tax invoice for the provision of the Services from time to time.

(3) You must pay SOP SERVICES:

(a) within the time stipulated on the invoice provided to You by SOP SERVICES; or
(b) if there is no such time stipulated 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 debtor; 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) By accepting this agreement on behalf of a corporation, a company director of the creditor entering into this agreement with SOP SERVICES guarantees full payment of all invoices and interest on overdue payments relating to the provision of the Services under this agreement by SOP SERVICES. This guarantee is given whether or not the director signs this agreement separately as guarantor.

3.7 Suspension of the Services by SOP SERVICES

If You fail to comply with any term of this agreement then SOP SERVICES 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 SOP SERVICES for anything arising out of any such suspension.

3.8 Lien

In the event You fail to pay to SOP SERVICES any amount owing under this agreement SOP SERVICES will be entitled to withhold all documents relating to the Services until it receives payment in full.

4 Warranties, indemnities and limitations

4.1 Warranties

You warrant that:

(1) the details, documents and other information supplied by You to SOP SERVICES with respect to the Debt are at all times true, accurate and correct;
(2) You have obtained any and all necessary consents in satisfaction of the Privacy Act 1988 (Cth) from the Debtor to enable SOP SERVICES 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 SOP SERVICES against any claim:

(1) relating to the performance, or attempted performance, by SOP SERVICES 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 SOP SERVICES by You; and/or
(4) resulting from a breach of the terms of this agreement by You.

By accepting this agreement on behalf of a corporation, a company director of the creditor entering into this agreement with SOP SERVICES agrees to indemnify SOP SERVICES against any loss that it may suffer as a result of the creditor company failing to pay any amount it is required to make to indemnify SOP SERVICES under this clause. This indemnity is given whether or not the director signs this agreement separately as an indemnifier or guarantor.

4.3 Limitation of liability

You acknowledge and agree that SOP SERVICES 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 SOP SERVICES, 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) SOP SERVICES may terminate this agreement at any time by notice in writing to You.
(2) You may terminate this agreement by providing twenty eight (28) days notice in writing to SOP SERVICES.
(3) You acknowledge and agree that any and all outstanding fees including the Success Fee (if applicable) will remain payable to SOP SERVICES notwithstanding that this agreement has been terminated for any reason.

7 Miscellaneous

7.1 Assignment

(1) You cannot transfer or otherwise assign Your rights and obligations under this agreement without the prior written consent of SOP SERVICES.
(2) SOP SERVICES may assign its rights and obligations under this agreement at any time by notice in writing to You to that effect

7.2 Unenforceability

If any term of this agreement 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 govern this agreement.

8 Definitions

Agent	means the company SOP SERVICES who You appoint as Your authorised representative for the purposes of helping You recover the Debt You claim is owed to You by the Debtor
Claim	Means any claim You advise SOP SERVICES You have against the Debtor. Such claims may include 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	means the company SOP SERVICES who will provide professional and expert advice:
Debt	means the amount You claim is due and payable to You by the Debtor.
Debtor	means the person, company or other entity You claim owes You a Debt in relation to which You seek the assistance of SOP SERVICES.
Fee Agreement	means a document 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 together with these Terms of Engagement.
Recovered Amount	means the amount received by SOP SERVICES, or You, in satisfaction or partial 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, Arbitrator, Appointed Expert.
Security Of Payment Legislation	means any of: a) Building And Construction Industry Security Of Payment Act 1999 (NSW) b) Building Industry Fairness (Security Of Payment) Act 2017 (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) g) Building And Construction Industry (Security Of Payment) Act 2021 (WA) h) Construction Contracts (Security of Payments) Act 2004 (NT)
Services	means the services SOP SERVICES agrees to provide to You from time to time including the services set out in clause 2.
Successful Outcome	See clause 3.2(1).
Success Fee	means any amount agreed to be paid to SOP SERVICES in addition to the fee for the Services and calculated as a percentage of the Recovered Amount.
You and Your	means the natural person, corporation or organisation who enters into this agreement to instruct SOP SERVICES to perform the Services on its behalf.