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Terms of service

Standard Terms of Service

Express Commission Australia Pty Ltd ACN 127 295 176 

These Standard Terms of Service (Terms of Sevice) form part of and should be read in conjunction with the Master Commission Assignment Agreement & Guarantee (Agreement) that we will send you (Agent) after we receive your Application.

References in the Terms of Service to 'Express Commission', 'we', 'us' and 'our', as the context requires, are references to Express Commission Australia Pty Ltd ACN 127 295 176.

Words and terms that are defined in the Agreement have the same meaning in these Terms of Service.

Important Warnings

We recommend before you enter into the Agreement you obtain independent legal and accounting or financial advice, to ensure you understand these Terms of Service and the nature and effect of the Agreement.

Express Commission does not provide financial or investment advice or consumer or business loans.

Applications will only be accepted from permanent residents domiciled in Australia.

By completing the Application and signing the Agreement you are also agreeing to these Terms of Service as well as our legal disclaimer and privacy policy.

You should not assign your rights and grant a Security Interest in a Commission if you suspect that it may cause you financial hardship. 

You must not assign a Commission if you know or suspect that someone else may have an existing or potential claim against it, or if the sale is conditional, or subject to finance, or completion of construction, or if you or your company are or may be in financial trouble, or if there is already a Security Interest registered over the Commission.

Once a Commission has been assigned to us you must not access or use or transfer the Commission. The Commission must be delivered directly to us from your trust account within 2 Business Days of Settlement. 

Dicsount Fee / Advance Fee

Upon our acceptance of your Application, we will pay you the Cash Advance/Commission Advance. In consideration of this payment to you, Express Commission is entitled to (amongst other things) payment of the Discount Fee/Advance Fee.

The Discount Fee/Advance Fee is charged on a daily basis (at a rate per $1,000 of the Cash Advance/Commission Advance per day, or part thereof) commencing on the date the Cash Advance/Commission Advance is made and continuing until and including the date the Amount Outstanding is paid in full (in cleared funds) to Express Commission. We will tell you the rate of the Discount Fee/Advance Fee before you enter into any Specific Commission Assignment Agreement (SCAA).

The Minimum Discount Fee/Minimum Advance Fee on each Cash Advance/Commission Advance is $260.00. This Minimum Discount Fee/Minimum Advance Fee is applicable even if you choose to repurchase the Commission before Settlement.

If delays or extensions occur in Settlement, the Discount Fee/Advance Fee continues to accrue until the Amount Outstanding is paid to Express Commission.

Express Commission reserves the right to vary the Discount Fee/Advance Fee from time to time.  Any such variation will be notified to you. The varied Discount Fee/Advance Fee will apply on any new Cash Advance/Commission Advance made after you have received notice of variation, except when there is a Default Event. If there is a Default Event, Express Commission may increase the Discount Fee/Advance Fee on any existing Cash Advance/Commission Advance without notice to you.

Administration Fee / Assignment Fee

Express Commission may charge you an Administration Fee or an Assignment Fee for our costs of entering into each SCAA with you. Any such fee will be disclosed to you. 

Assignment & Security Interest

By making an Application, you acknowledge and agree with Express Commission that you have made an absolute and unconditional offer of assignment of your legal and beneficial right, title and interest in and to the Commission which for the purposes of the Personal Property Securities Act is a transfer of Accounts to Express Commission, giving rise to a Security Interest in the Commission to Express Commission. 

Authorisation to Complete Documents

In consideration of Express Commission agreeing to enter into the Agreement, you irrevocably authorise Express Commission to complete the Agreement, any SCAA and any other documents relating to the Agreement (or any of them that may be incomplete) by inserting all relevant dates and details, to correct any errors and to make any amendments or additions to the documents necessary in our opinion to:

8 give effect to the documents and the agreed terms and conditions of the Agreement and the SCAA; and/or

8 enable the stamping and registration of the documents by the Registrar of Titles (in any State or Territory) or the Australian Securities & Investments Commission or on the Personal Property Securities Register; and/or

8 make available to the Agent any Cash Advances/Commission Advances under the Agreement.

Payment to You

Express Commission will determine the amount of any Cash Advance/Commission Advance and will tell you the amount of the Cash Advance/Commission Advance each Application qualifies for. Express Commission can decline to accept an Application without offering a reason.  The minimum amount of a Cash Advance/Commission Advance is $3,000.00.  Any indication of a Cash Advance/Commission Advance by Express Commission is only indicative and is not binding until the funding actually occurs.

Change in Circumstances

You and any Guarantor must notify us of any changes in your personal circumstances and changes in the Commission. It is important that the information you give us (oral or written) is and remains honest and accurate, true and correct.  This means that you agree to immediately advise us of any:

8 change in employment, address, phone or email, workplace agreement or any circumstance that may affect our right to receive the Commission; or  

8 delay or cancellation in Settlement; or

8 changes in your financial position that may affect your ability to pay the Amount Outstanding; or

8 changes that may affect our Security Interest in the Commission; or 

8 other material event.  

Default Events & Your Obligation to Pay the Amount Outstanding

You should carefully read the Agreement to see what constitues a Default Event and what Express Commission may do if there is a Default Event.

If there is a Default Event, Express Commission is not obliged to provide you with a written notice of default.

Upon a Default Event, you agree to comply with any request from Express Commission to immediately repurchase the Commission and immediately pay the Amount Outstanding.

Upon a Default Event, Express Commission may require you to assign and grant a Security Interest in a replacement Commission that is acceptable to us. An acceptable replacement Commission will be: 

8 for an amount exceeding the sum of the amount of the current Amount Outstanding plus the estimated additional Discount Fee/Advance Fee until the Settlement Date of the replacement Commission; and

8 for an unconditional contract of sale of residential property, where Settlement is due within 90 days or less from the date of assignment; and

8 where you ou are holding sufficient deposit monies (or there is a deposit bond) to cover the value of the replacement Commission being assigned; and

8 at the entire discretion of Express Commission.  

If there is a Default Event you are responsible for all legal and recovery costs incurred by Express Commission in enforcing the Agreement.

If there is a Default Event, Express Commission may increase the Discount Fee/Advance Fee without notice to you.

Delay or Non Payment of the Assigned Commission

Express Commission is not responsible for any added days Discount Fee/Advance Fee charged to you due to delays in Settlement or delays in payment of the Commission.   

Documentation

Upon request by Express Commission you will promptly deliver to Express Commission all documents and information relevant to the Commission or evidencing the Settlement status of the Underlying Contract. 

Electronic Communication 

We may use your personal details, including any email address, facsimilie number or social media account (Electronic Address) you have provided to us in the Application or by any other means, to communicate with you and to send you the Agreement and any SCAA.

We will accept and act upon (without any verification) communications received from your Electronic Address and you: 

8 authorise us to accept and act upon (without any verification) any such communication received from your Electronic Address;   

8 acknowledge that electronic communication is not a secure means of communication and is at risk of being manipulated, distorted or subject to fraud and may not be clear;  

8 agree to indemnify us in respect of any liability or loss arising from us acting on any electronic communication received from you; and 

8 agree that until you provide written notice to the contrary, we may send communications to your Electronic Address.  

Exclusions

If Express Commission publishes material concerning our business, anything so published which is incompatible with these Terms of Service and the provisions of the Agreement is excluded. You will rely on your own knowledge and expertise in using the services of Express Commission. Any advice or assistance given from or on behalf of Express Commission shall be accepted at your risk and shall not be deemed given as expert or advisor, nor to have been relied upon by you or anyone claiming through you. 

Extension of Time

Express Commission is not obliged to grant time extensions beyond the Agreed Date.

Financial Statements

If asked to do so by Express Commission you will provide Express Commission with your personal and business financial information. Upon a request by Express Commission, any such information will be provided within 5 Business days.

Force Majeure

Express Commission will not be in default or breach of any contract with you as a result of Force Majeure. Force Majeure means any thing or any event beyond the reasonable control of Express Commission and includes any strike or lock-out.

Funding Pre-Conditions

You will truthfully and correctly fully disclose all matters material to the information being sought by Express Commission and in the Application. To qualify for same day funding, all information sought by Express Commission including signed SCAAs must be delivered to Express Commission by 3.00pm eastern standard time. 

How & When We Receive Payment

You agree to assist Express Commission collect the Commission.

Express Commission has the right to receive 100% of the Commission directly following Settlement.

If the deposit monies are being held by a third party you grant an irrevocable authority in favour of Express Commission to receive and collect the full amount of the Commission from the third party directly at Settlement.

If you receive the Commission you agree not to deal with the Commission in any way other than in accordance with the Agreement and that you receive the Commission as agent for Express Commission. If you receive the Commission you hold it on trust for Express Commission and will not mingle the Commission with other monies; the Commission shall be at all times identifiable both whole and in part as Express Commission's monies. If you receive the Commission you will deposit it directly into your trust account and immediately remit the Commission to Express Commission from your trust account.

If the Commission is not received by the Agreed Date, Express Commission reserves the right to make contact directly with the solicitors or conveyancing firms handling the sale to verify the Underlying Contract and/or confirm the expected Settlement Date.

Within 2 Business Days of receiving the Commission (in cleared funds) Express Commission will pay the Balance (if any), less the Discount Fee/Advance Fee, the Administration/Assignment Fee and any other fees or costs identified in the Agreement to you. 

Interest on Any Monies Outstanding

You agree to pay interest to Express Commission on the Amount Outstanding at the rate that is calculated by converting the Discount Fee/Advance Fee to an annual percentage interest rate.

Licensing

Express Commission is engaged solely in the business of providing confidential invoice discounting and factoring arrangements as per Class Order 04/239 issued by the Australian Securities and Investment Commission (effective 10/3/2004).

Limitation of Liability

Express Commission shall not be liable for any claim loss or expense arising from a delay in processing an Application.  Express Commission will not be liable for any contingent, consequential, direct, indirect, special or punitive damage arising whether due to negligence or otherwise.  You acknowledge this express limit of liability and agree to limit any claim accordingly.

Limits

Express Commission have the right to establish a limit on the total amount of Cash Advances/Commission Advances made to you. Express Commission can vary or withdraw any limit without notice to you and without liability to you or any other party.

Notice of Assignment

Immediately upon Express Commission paying the Cash Advance/Commission Advance to you, you must notify in writing the Vendor or debtor or person from whom you are entitled to receive the Commission that you have made an absolute assignment of your beneficial right, title and interest in and to the Commission to Express Commission. 

Personal Guarantee of Directors & Shareholders

If you have a company structure, you must be a director and/or shareholder of the company and you agree to provide a personal guarantee to Express Commission for the performance of the company.

The Guarantor charges in favour of Express Commission all Other Property which the Guarantor now has or during the currency of the Agreement may acquire and grants to Express Commission a Security Interest in all of the Guarantor's Personal Property.

We recommend that before signing a personal guarantee you obtain independent legal and financial advice so that you understand the nature and effect of the guarantee.  

Preservation of Liability

Your liabilities and our rights are not affected by anything which might otherwise have that effect at law or in equity including one or more of the following:

8 any inaccuracy, insufficiency or forgery of or in any certificate or other instrument which purports to be made, issued, executed or delivered under the Application and/or the Agreement; 

8 we or another person granting time or other indulgance (with or without the imposition of an additional burden) to, compounding or compromising with or wholly or partially releasing you in any way;

8 laches, acquiescence, delay, acts, omissions or mistakes by us (excluding our fraud or gross negligence) or another peron;

8 any variation or novation of any of our rights, or alteration of any documents, in respect of the Agent and/or the Guarantor;

8 the invalidity or uneforceability of an obligation or liability of a person;

8 invalidity or irregularity in the execution of the Agreement and/or the SCAA by you or any deficiency in your powers to enter into or observe your obligations under the Agreement and/or the SCAA.

Procedural Matters   

You agree to comply with any procedures nominated by Express Commission from time to time in dealing with any Application, any Commission or anything else arising under the Agreement.

Protecting Your Privacy & Your Consent to Credit Checks

Express Commission recognises and respects the importance of maintaining the privacy of our customers and our web-site users. We have a strict Privacy Policy that you must read (see our privacy policy). 

In order to approve an Application Express Commission needs to collect, share and verify certain personal information with certain third arties. If Express Commission cannot collect, share, and verify personal information we will be unable to assess your Application or manage credit facilities that relate to your account. By completing the Application and agreeing to these Terms of Service you and the Guarantor are providing consent to Express Commission to obtain information from and share information with certain third parties including credit reporting agencies for the purpose of assessing your and the Guarantor's suitability for credit and collecting overdue payments in accordance with the Privacy Act 1988 including Sections 18K(1), 18K(1)(b), 18K(1)(c), 18K(1)(h), 18N(1)(b) & 18E(1)(b)(vi). 

Security Interest & Contracting Out under the Personal Property Securities Act 2009 (Cth)

As security for all monies owing from time to time by you to Express Commission, you as beneficial owner grant a continuing Security Interest to Express Commission in all your Personal Property (including, but not limited to intellectual property, any contingent or actual right to any monies held in trust and/or any debt due to you, any proceeds from the sale of your real estate business or the rent-roll, and all Circulating Assets and Non-Circulating Assets). 

The Security Interest granted to Express Commission extends to all and any Proceeds of any Collateral. 

You agree that Express Commission has a registrable Security Interest in all of your present and after acquired Personal Property. You agree to supply Express Commission with all information necessary for, or execution to give effect to, Express Commission registering its Security Interest in all your present and after acquired Personal Property by way of a Financing Statement or a Financing Change Statement.

You agree to ensure that the Security Interest held by Express Commission remains Continuously Perfected. 

If Express Commission holds an existing registered company charge over the Agent, or existing Security Interest in any of the Agent's Personal Property, the Agent acknowledges and agrees that the existing company charge or Security Interest in any of the Agent's Personal Property extends to secures and is collateral security for the financial accomodation (including the Amount Outstanding) provided to the Agent pursuant to the Agreement.

You and the Guarantor waive any right to receive any notice under the Personal Property Securities Act (including notice of a verification statement after registration of a Security Interest under the Agreement or variation of registration).

Sundry Fees

Express Commission may charge you Sundry Fees such as registration fees, late payment fees, settlement fee and statement of account fee. You must pay any Sundry Fee on demand. The current Sundry Fees are:

8 Late Payment Fee: $100.00

8 Cheque Dishonour Processing Fee: $100.00

8 Statement of Account Fee: $100.00

8 Discharge / Settlement Fee: $250.00

8 Registration Fee: $150.00

Applicable Law

These Agreement is governed by the laws in the state of Victoria. You agree to submit to the jurisdiction of a Victorian court and waive any objection to legal action being brought in Victoria on the grounds of venue or inconvenient forum.

Complaints Handling Procedure

We agree to conform with the Australian Standard AS4269-1995 (Standard) for handling complaints.

If you have a complaint please send in writing to the Agent Services Manager, Express Commission P.O. Box 2087 Wattletree Road Post Office, Malvern East, Victoria 3145. We will provide a response in accordance with the Standard.  

Service of Notices 

Any notice or demand by Express Commission to you will be in accordance with the Agreement.

To serve a notice on Express Commission, send by registered mail to P.O. Box 2087 Wattletree Road Post Office, Malvern East, VIC 3145.

Variation in the Standard Terms of Service 

Express Commission reserve the right to vary any of these Terms of Service without notice to you.  The varied Terms of Service will be published on our web-site. If you make an Application after a variation, that Application constitutes an agreement by you to be bound by the varied Terms of Service. 

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V05.2013