Service Terms and Conditions

Authority. Subject to clause 4.3 and the Client’s written instructions from time to time, the Client authorises ARMA, as its agent, to:

(a) issue demands, notices and other communications to debtors in the name of the Client, or in ARMA’s name on the Client’s behalf, in connection with the recovery of a Debt;

(b) request, receive and hold payments from debtors on the Client’s behalf in accordance with clause 7;

(c) negotiate, enter into and administer repayment arrangements with debtors within any parameters specified by the Client;

(d) issue Credit Warnings in accordance with clause 12;

(e) engage Oakbridge Lawyers, process servers and other third parties, at the Client’s cost, where instructed by ARMA as the agent of the Client; and

(f) do all things reasonably incidental to the above.

Effect of agency. The Parties acknowledge and agree that:

(a) each act done by ARMA within the scope of its authority under the Agreement is done on behalf of, and binds, the Client;

(b) each Debt remains at all times the property of the Client, and ARMA acquires no right, title or interest in any Debt;

(c) ARMA collects each Debt in the name and right of the Client; and

(d) as between the Parties, the Client is responsible as principal for the existence, amount, enforceability and lawfulness of each Debt and for the lawfulness of the instructions it gives ARMA.

ARMA’s duties as agent. In performing the Services, ARMA must:

(a) act in good faith and in the best interests of the Client within the scope of its authority;

(b) act with due care, skill and diligence and in accordance with Good Industry Practice;

(c) act in accordance with the lawful and reasonable instructions of the Client;

(d) comply with the Debt Collection Guideline and all laws applicable to the performance of the Services; and

(e) receive, hold and account for Collected Debt in accordance with clause 7.

Client’s duties as principal. The Client must:

(a) provide timely, lawful and complete instructions in relation to each Debt;

(b) not instruct ARMA to do anything that would cause ARMA to breach any law, the Debt Collection Guideline or the Privacy Laws;

(c) respond to ARMA’s requests for instructions (including in relation to disputes, hardship notices and settlement proposals) within five (5) Business Days or such other period reasonably specified by ARMA; and

(d) comply with its own obligations under all laws applicable to the Debt, including the Privacy Laws, the Australian Consumer Law and, where applicable, the National Credit Code.

The Client must pay ARMA the Commission in respect of a Debt where, after the Debt is referred to ARMA:

(a) all or part of the Debt or any consideration for it is paid to ARMA;

(b) all or part of the Debt or any consideration for it is paid to the Client or any of its related entities or authorised third parties;

(c) the Debt is settled or satisfied in whole or in part by mutual agreement, instalment arrangement, return of goods, reinstatement of services, contra or other settlement arrangement, whether arranged by ARMA or by the Client directly or indirectly, at any time after ARMA’s initial demand is issued or ARMA first contacts the debtor;

(d) ARMA identifies or assists in locating a payment that clears or reduces the Debt or was previously unallocated by the Client; or

(e) the Client withdraws its instructions in respect of the Debt, or suspends or fails to provide instructions in respect of the Debt for a continuous period of more than sixty (60) days, in which case Commission is payable only on: (i) amounts collected before the withdrawal or suspension; and (ii) amounts subsequently paid under a payment arrangement established by ARMA before the withdrawal or suspension, together with any withdrawal fee specified in the Application.

The Client warrants to ARMA that, at the time each Debt is referred and on a continuing basis while ARMA is engaged to provide the Services:

(a) all information in the Debt File and all other information supplied by the Client to ARMA is accurate, complete and up to date in all material respects, and the Client will immediately provide ARMA with any new or corrected information that comes to its attention;

(b) the Debt is due and payable, is capable of collection, is not statute-barred, is not the subject of a genuine dispute or set-off, and has not been paid, settled, released or written off, except as disclosed in writing in the Debt File;

(c) the Client has disclosed in the Debt File any hardship notice, complaint, dispute or payment arrangement relating to the Debt of which the Client is aware;

(d) the Client is lawfully entitled to disclose the Personal Information in the Debt File to ARMA, and has taken all steps required by the Privacy Laws to permit that disclosure and ARMA’s use of it for the Services, including notifying the debtor (where the debtor is an individual) that their Personal Information may be disclosed to a debt collection agency;

(e) where the Client instructs ARMA to issue a Credit Warning, the Client is a Credit Provider entitled under the Privacy Act and the CR Code to disclose default information in relation to the Debt, and the statutory preconditions to that disclosure (including any required notices under sections 6Q and 21D(3) of the Privacy Act, minimum amount and minimum overdue period) have been, or will before any disclosure be, satisfied;

(f) in respect of Commercial Debts, the Client has taken all reasonable steps to advise the debtor that delinquent debts may be referred to a credit reporting body, and will on request provide ARMA with details of all Commercial Debts outstanding for sixty-one (61) days or more and the recovery steps taken; and

(g) the giving of instructions to ARMA, and the performance of the Services in accordance with those instructions, will not cause ARMA to breach any law, the Debt Collection Guideline or the rights of any person.

The Client must, while ARMA is engaged to provide the Services:

(a) promptly provide ARMA with all relevant information concerning each Debt and the persons liable for it, and authorise ARMA, Oakbridge Lawyers and other properly engaged third parties to use that information for purposes relevant to the Services;

(b) immediately advise ARMA of any payment made or credit processed directly by or to the Client in relation to a Debt, and of any communication received directly from the debtor concerning a Debt;

(c) give instructions for the commencement of any legal proceedings in writing; and

(d) cooperate with ARMA, at the Client’s cost to the extent the relevant matter arises from the Client’s breach of this clause 8, in the handling of any complaint, dispute, investigation or litigation arising from the Services.

The Client acknowledges and agrees that:

(a) ARMA performs the Services as agent of the Client in reliance on the accuracy and completeness of the Debt File and the other information and instructions provided by the Client;

(b) ARMA is not obliged to independently verify the existence, amount or enforceability of any Debt or the accuracy of any Debt File; and

(c) as between the Parties, responsibility for the accuracy and lawfulness of the Debt File and the Client’s instructions rests with the Client as principal. This clause does not apply to the extent ARMA continues collection activity in respect of a Debt after ARMA has actual knowledge that the relevant information is materially inaccurate or that the activity is unlawful.

The Client indemnifies ARMA and its Personnel against all loss, damage, liability, costs and expenses (including reasonable legal costs on a solicitor and own client basis, and fines and penalties to the extent an indemnity for them is permitted by law) suffered or incurred by ARMA or its Personnel arising out of or in connection with:

(a) any breach of a warranty or obligation in clause 8;

(b) any inaccuracy, incompleteness or unlawfulness of, or omission from, a Debt File or other information provided by the Client;

(c) collection activity undertaken in respect of a Debt that is statute-barred, disputed, subject to set-off, paid, settled or otherwise not recoverable, where that circumstance was not disclosed to ARMA in writing;

(d) the issue of a Credit Warning, or any credit reporting activity, undertaken on the Client’s instructions where the Client was not entitled to give those instructions or the statutory preconditions were not satisfied;

(e) any instruction of the Client that is unlawful or that causes ARMA to breach any law, the Debt Collection Guideline or the Privacy Laws; and

(f) any claim, complaint, investigation or proceeding brought or commenced by a debtor, regulator or other third party to the extent it arises from a matter described in paragraphs (a) to (e).

The Client’s liability under clause 9.2 is reduced proportionately to the extent that the relevant loss, damage, liability, cost or expense is caused or contributed to by:

(a) the fraud, negligence or wilful misconduct of ARMA or its Personnel;

(b) ARMA’s breach of the Agreement, any law or the Debt Collection Guideline (other than a breach caused by the Client’s information or instructions); or

(c) ARMA continuing to act after having actual knowledge of the relevant inaccuracy or unlawfulness.

ARMA must:

(a) notify the Client as soon as practicable after becoming aware of a claim or circumstance likely to give rise to a claim under this clause 9;

(b) take reasonable steps to mitigate the relevant loss; and

(c) not settle any third-party claim the subject of the indemnity without the Client’s prior written consent (not to be unreasonably withheld), and must give the Client a reasonable opportunity to participate in the defence of the claim at the Client’s cost.

The Client acknowledges that:

(a) information provided by ARMA may in whole or part be based on information provided by third parties, public registers or publicly available sources, and may not be all the information ARMA holds;

(b) subject to clause 1.3 and any non-excludable rights, ARMA does not warrant the completeness or accuracy of third-party information supplied as part of the Services, which is current only within ARMA’s established update procedures; and

(c) ARMA does not underwrite the Client’s commercial risk in extending credit or dealing with any debtor.

Nothing in clause 10.2 or 10.3 excludes or limits a Party’s liability:

(a) for death or personal injury, or loss of or damage to real or tangible property, caused by its negligence;

(b) for its fraud or wilful misconduct;

(c) for breach of clause 22 (Confidentiality) or of the Privacy Laws;

(d) under the indemnities in clause 9 or clause 10.5;

(e) in the case of the Client, to pay the Amounts Owing; or

(f) that cannot be excluded or limited by law.

ARMA indemnifies the Client against all loss, damage, liability, costs and expenses (including reasonable legal costs) suffered or incurred by the Client arising out of any claim, complaint, investigation or proceeding brought by a debtor, regulator or other third party to the extent it arises from:

(a) ARMA’s breach of the Debt Collection Guideline, the Privacy Laws or any other law applicable to the performance of the Services; or

(b) the negligence, fraud or wilful misconduct of ARMA or its Personnel in performing the Services, in each case reduced proportionately to the extent the relevant loss is caused or contributed to by the Client, including by the Client’s breach of clause 8 or by inaccurate or unlawful information or instructions provided by the Client.

Without limiting clause 11.1, the Client must:

(a) before referring a Debt owed by an individual, notify the debtor in accordance with the Privacy Laws that their Personal Information may be disclosed to a debt collection agency; and

(b) cooperate with ARMA in discharging privacy obligations relating to the collection, correction of, and access to, Personal Information, and in resolving any complaint alleging a breach of the Privacy Laws in relation to Personal Information exchanged under the Agreement.

ARMA may collect Personal Information about the Client and its Personnel (including name, address, identification details and credit or business history) and will handle that information in accordance with ARMA’s privacy policy published on the Website and the Privacy Laws. The Client consents to ARMA using that information to:

(a) provide the Services and administer the Agreement;

(b) conduct credit assessment of the Client; and

(c) send the Client information about ARMA’s services, provided that the Client may opt out of marketing communications at any time and each electronic marketing message will contain a functional unsubscribe facility as required by the Spam Act 2003 (Cth).

The Client consents to ARMA disclosing the Client’s Personal Information:

(a) to ARMA’s related bodies corporate, service providers and contractors for the purposes of providing the Services; and

(b) to ARMA’s debt recovery agents or lawyers if the Client is in default under the Agreement. Individuals have a right to access and seek correction of the Personal Information ARMA holds about them, and to complain, in accordance with ARMA’s privacy policy.

Where applicable and required as a Service in the Application, ARMA will issue a Credit Warning in respect of a Debt only where:

(a) the Client has instructed ARMA to do so; and

(b) the Client has confirmed in writing (including by warranty under clause 8.1(e)) that it is a Credit Provider entitled to disclose default information in relation to the Debt and that the preconditions to disclosure under the Privacy Act and the CR Code have been, or will before any disclosure be, satisfied.

In respect of Personal Information disclosed by the Client to ARMA for the purposes of the Services, ARMA must:

(a) protect the information against misuse, interference, loss and unauthorised access, modification or disclosure, in accordance with the Australian Privacy Principles;

(b) comply with the Client’s reasonable and lawful directions, and all applicable Privacy Laws, when collecting, using, disclosing, storing or transferring the information in connection with the Services;

(c) use the information, and ensure its Personnel use the information, only for the purposes of performing the Agreement, and limit access to Personnel who require it for those purposes;

(d) notify the Client promptly if ARMA becomes aware that disclosure of the information may be required by law;

(e) implement and maintain administrative, physical and technical safeguards, information security technologies and an information security policy consistent with Good Industry Practice, and proactively remediate identified vulnerabilities in its systems on a timely basis;

(f) maintain records of changes made to Personal Information;

(g) on the Client’s request following completion of the Services, return or securely destroy the information, except to the extent retention is required by law or for ARMA’s legitimate record-keeping, audit, insurance or compliance purposes; and

(h) ensure that any subcontractor engaged in connection with the Services is bound by obligations substantially equivalent to this clause 13.

If a Party becomes aware of, or has reasonable grounds to suspect, unauthorised access to, disclosure of, or loss of Personal Information handled in connection with the Agreement, that Party must:

(a) notify the other Party as soon as practicable and in any event within forty-eight (48) hours;

(b) take prompt remedial action; and

(c) cooperate with the other Party in investigating and remediating the incident. Each Party remains responsible for its own obligations under Part IIIC of the Privacy Act (Notifiable Data Breaches scheme), and the Parties will consult in good faith, and act consistently with their legal obligations, in determining which Party notifies the Office of the Australian Information Commissioner and affected individuals.

(a) Where ARMA provides Services that store, process, transmit, or otherwise could impact the security of cardholder data or the Cardholder Data Environment (CDE), ARMA acknowledges that it acts as a PCI-DSS service provider for the purposes of those Services.

(b) ARMA acknowledges and agrees that it is responsible for maintaining compliance with all applicable PCI-DSS requirements relevant to the Services it provides that store, process, transmit, or could impact the security of cardholder data or the CDE.

(c) ARMA must maintain PCI-DSS compliance for the duration of the Services and promptly notify the Client if ARMA’s PCI-DSS compliance status materially changes or is at risk of non-compliance.

(d) ARMA must provide the Client, on request, with clear and accurate information identifying which PCI-DSS requirements are ARMA’s responsibility, which are the Client’s responsibility, and which responsibilities are shared, as documented in the applicable PCI-DSS responsibility matrix or equivalent allocation of responsibilities.

ARMA will comply with all legislation, codes, standards and guidelines applicable to the provision of the Services, including (to the extent applicable):

(a) the Privacy Laws, including the CR Code;

(b) the Competition and Consumer Act 2010 (Cth), including the Australian Consumer Law;

(c) the Australian Securities and Investments Commission Act 2001 (Cth);

(d) the Debt Collection Guideline;

(e) ASIC Regulatory Guide 271 (Internal Dispute Resolution), where applicable to complaints handled by ARMA;

(f) the National Consumer Credit Protection Act 2009 (Cth) and the National Credit Code, where applicable, including the hardship provisions in sections 72 and 177B of the National Credit Code;

(g) all state and territory legislation licensing or regulating debt collection activity and the handling of monies collected on behalf of clients; and

(h) the AML Act.

ARMA will handle complaints and financial hardship notifications in accordance with the Debt Collection Guideline, ASIC Regulatory Guide 271 (where applicable) and, for regulated credit, the National Credit Code, and will:

(a) notify the Client within two (2) Business Days of receiving a complaint concerning the Services or a systemic issue;

(b) notify the Client within two (2) Business Days of becoming aware of a breach by ARMA of a law, code or guideline referred to in clause 14.1 that affects the Client or its debtors; and

(c) on receiving a hardship notice from a debtor, cease inconsistent collection activity, notify the Client, and provide the Client with information in writing about the hardship process and ARMA Assist.

ARMA may terminate the Agreement, or cancel any unfulfilled referral, with immediate effect by written notice if:

(a) the Client, being an individual, commits an act of bankruptcy within the meaning of section 40 of the Bankruptcy Act 1966 (Cth); or

(b) an insolvency event occurs in relation to the Client, including the appointment of a receiver, receiver and manager, administrator, controller, liquidator, provisional liquidator or trustee, except to the extent that termination is stayed or unenforceable under the ipso facto provisions of the Corporations Act 2001 (Cth).

Either Party may terminate the Agreement by written notice with effect on seven (7) days’ notice if the other Party:

(a) fails to pay an amount due and payable under the Agreement (not being an amount subject to a genuine dispute notified under clause 6.11) and does not remedy that failure within fourteen (14) days of written notice requiring payment; or

(b) breaches a material term of the Agreement and, where the breach is capable of remedy, does not remedy it within fourteen (14) days of written notice requiring remedy.

On termination or expiry of the Agreement for any reason:

(a) all Amounts Owing that are due and payable, including amounts for Services performed up to the date of termination, must be paid by the Client;

(b) ARMA may deduct from any Collected Debt held on the Client’s behalf the Amounts Owing that are due and payable and not subject to a genuine dispute, and must remit the balance in accordance with clause 7.3;

(c) in respect of any payment arrangement established by ARMA before termination, Commission remains payable on amounts subsequently paid under that arrangement, unless the Parties agree otherwise; and

(d) each Party must, subject to clause 13.1(g) and its legal retention obligations, return or destroy the other Party’s Confidential Information and Personal Information on request.

If the Client enters into the Agreement as trustee of a trust, the Client warrants that:

(a) it enters into the Agreement in its capacity as trustee of that trust;

(b) it has all requisite power and authority to do so;

(c) it has a right of indemnity from the trust assets in respect of its obligations under the Agreement; and

(d) entry into the Agreement is for the benefit of, and has been approved in accordance with the terms of, the trust.

Subject to clause 20.3, ARMA will notify the Client by email, using the contact details provided by the Client, within one (1) Business Day of forming a suspicion on reasonable grounds that:

(a) an individual, or an agent of an individual, with whom ARMA deals in connection with the Services is not who they claim to be; or

(b) information provided in connection with the Services may relate to the proceeds of crime or to the investigation of a crime (including money laundering, terrorism financing or tax evasion).

Each Party must keep confidential the Agreement and all confidential information of the other Party obtained in connection with it, and must not disclose it except:

(a) with the prior written consent of the other Party;

(b) to its Personnel, related bodies corporate, insurers and professional advisers on a need-to-know basis and subject to obligations of confidence;

(c) as required by law, a regulator or the rules of a stock exchange (including ASX disclosure obligations of Credit Clear Limited), provided that, where lawful and practicable, the disclosing Party gives the other Party prior notice; or

(d) where the information is in the public domain otherwise than through a breach of this clause.

A notice under the Agreement must be in writing and given by hand, by post or by email to the address or email address of the recipient set out in the Application (or as updated by notice). A notice is taken to be received:

(a) if delivered by hand, on delivery;

(b) if posted within Australia, on the fourth Business Day after posting; and

(c) if sent by email, at the time the email enters the recipient’s mail server, unless the sender receives an automated message that the email was not delivered, provided that a notice received after 5.00 pm or on a day that is not a Business Day is taken to be received on the next Business Day.

Neither Party may assign or novate its rights or obligations under the Agreement without the prior written consent of the other Party, which must not be unreasonably withheld or delayed, except that ARMA may assign or novate to a related body corporate on written notice to the Client, provided the assignee or novatee has the capacity and licences necessary to perform the Services.

If any provision of the Agreement is void, unenforceable or illegal, it is severed to the extent necessary, and the remaining provisions continue in full force and effect, unless the severance would materially change the intended effect of the Agreement.

A failure or delay by a Party to exercise a right, power or remedy does not operate as a waiver of it, and a single or partial exercise does not preclude any further exercise. A waiver is effective only if in writing and signed by the waiving Party.

An obligation of two or more persons binds them jointly and severally, and a right conferred on two or more persons benefits them jointly and severally.

Access to ARMA’s systems and database will be by a method agreed between the Parties, and the Client is responsible for its own communication costs of access. The Client must promptly advise ARMA of any changes in its Personnel that affect access permissions to ARMA’s systems.

The Agreement may be executed electronically (including by ticking an acceptance box online) and in counterparts, and electronic execution has the same effect as execution of an original in accordance with the Electronic Transactions Act 1999 (Cth) and its state and territory equivalents.

This edition of these Terms and Conditions replaces and supersedes all previous editions issued by ARMA in respect of Services supplied after the date this edition takes effect, subject to clause 24.

The Agreement is governed by the laws of New South Wales. Each Party submits to the non-exclusive jurisdiction of the courts of that State and waives any objection to venue on the ground of inconvenient forum.