Terms & Conditions

These Terms and Conditions govern the provision of Debt Management Solutions by Dun & Bradstreet (Australia) Pty Ltd ACN 006 399 677 (ABN 72 256 863 039) of Level 7, 479 St Kilda Rd, Melbourne, Victoria, 3000, Australia (D&B) to you (Customer).

Debt Management Solutions

Debt Management Solutions comprises D&B taking such action as it considers reasonably necessary to give effect to the instructions of the Customer to recover and secure debts that are provided to D&B. This may include D&B instructing, at the Customer's cost, other third parties (such as lawyers and process server agents) as is reasonably necessary to recover and secure such debts. D&B may, in its absolute discretion, refuse to accept or continue to handle any debt(s) offered by the Customer for collection.

The concept of when a debt is "recovered" is important for the provision of the Debt Management Solutions and the Customer acknowledges that a debt will be recovered when:

  1. (a) the debt or part of it has been collected by D&B or any person appointed by D&B in accordance with these Terms and Conditions; or
  2. (b) at any time after D&B has received instructions for any Debt Management Solutions relating to the debt:
    1. i. the debt or part of it has been paid by the debtor or any person on the debtor's behalf to or for the benefit of the Customer;
    2. ii. the debt or the account to which it relates is settled or compromised by the Customer in any way; or
    3. iii. the Customer accepts goods or services in full or partial satisfaction of the debt.

In such cases the amount that is recovered is as follows:

  1. (a) in the case of paragraphs (a),(b)(i) or (b)(ii), the amount collected or paid or the amount of the settlement or compromise; and
  2. (b) in the case of paragraph (b)(iii), the value (as reasonably determined by D&B) of the goods or services accepted by the Customer.

D&B will not, except in following any instructions of the Customer or otherwise with the Customer's prior approval, enter into any repayment arrangements or negotiate with any debtor or bind or purport to bind the Customer to acceptance of less than the full amount of the debt.

All monies received on behalf of the customer will be deposited into a trust account and, except where alternative prior arrangements have been made, D&B will deduct all fees and expenses from the moneys collected on behalf of the Customer. Where the fees or expenses exceed or are not deducted out of the moneys collected on behalf of the Customer, the Customer will be invoiced for these amounts and must pay all invoices issued for such amounts by the due date specified in the invoice. The Customer acknowledges that funds deposited into the D&B trust account and subsequently paid to the Customer may not be cleared funds. Should the relevant financial institution subsequently not honour the relevant transaction(s), the Customer must refund to D&B the amount of the transaction and any interest that has accrued on that amount within 7 days of receipt of a notice of demand from D&B.

Customer obligations

The Customer must provide D&B with all relevant information concerning the debt(s) and the parties responsible for the debt(s) and authorises D&B (and any solicitors or other parties D&B engages on the Customer's behalf) to use the information for any proper purpose. The Customer must comply with the Privacy Law in providing this information and undertakes to D&B that all reasonable steps have been taken to advise the debtor that delinquent debt(s) referred to D&B will be listed on its databases (where D&B is authorised to do so under the Privacy Law). The Customer must advise D&B immediately upon any payment towards a debt being made by the debtor directly to the Customer, or any credit passed by the Customer, or any communication between the Customer and debtor. The Customer must provide its instructions in writing, using the standard instruction forms provided by D&B, where legal proceedings are to be initiated to recover a debt.

D&B will retain and provide to other third parties certain default information provided by the Customer, as part of D&B providing consumer and commercial credit reporting, information and marketing s to its customers (Credit Services). The Customer agrees that the Customer's name or business name will appear with this information in reports or other information supplied by D&B to third parties.

Annual service fee Commission and expenses

D&B will invoice the Customer for the annual service fee following its acceptance to provide Debt Management Solutions to the Customer and the fee is payable by the due date specified on the invoice. Subsequent annual service fees will be invoiced by D&B at or around each anniversary of the date of acceptance.

In addition, the Customer must pay to D&B the commission percentage relevant to the amount Recovered applicable at the time instructions were given to D&B to perform that Debt Management Solutions and all costs, charges and expenses incurred by D&B to any other person in the course of providing the services. If such amounts are subsequently recovered from the debtor, they will be refunded to the Customer.

D&B may charge interest on late payments at the rate of 1% per month (calculated daily) (or, if this rate is not allowable at law, the then-current rate fixed under division 2 of the Penalty Interest Rate Act 1983 (Vic)) from the date on which an invoice becomes overdue until payment is received in full by D&B.

All fees and charges payable by the Customer under this Agreement are exclusive of all taxes including GST. If a party (Supplier) makes a supply under or in connection with the Debt Management Solutions on which GST is imposed the consideration payable or to be provided for that supply (GST exclusive consideration) is increased by, and the recipient of the supply (Recipient) must also pay to the Supplier, an a?ount equal to the GST payable by the Supplier on that supply. The amount by which the GST exclusive consideration is increased must be paid to the Supplier by the Recipient without set off, deduction or requirement for demand, at the same time as the GST exclusive consideration is payable or to be provided. If a payment to a party under this Agreement is a reimbursement or indemnification, calculated by reference to a loss, cost or expense incurred by that party, then the payment will be reduced by the amount of any input tax credit to which that party is entitled for that loss, cost or expense.

D&B may, at any time vary the fees and commission percentage by giving the Customer not less than 7 days written notice and, where it does, the Customer may terminate for convenience by giving written notice to D&B within that notice period. The Customer agrees that all matters relating to the fees and charges are the confidential information of D&B.

Intellectual Property Rights

The Customer acknowledges and agrees that all rights, title and interest (including all future copyright and other intellectual property rights) in and to all information provided by the Customer to D&B under or in connection with this agreement (whether provided before or after the date of this agreement), including all information provided to D&B is assigned to D&B at the time that the information is provided to D&B. The Customer acknowledges that, as a consequence of the assignment D&B may retain and use all information supplied to it by the Customer for any purpose authorised by law. The Customer must do everything required (including executing further documents) to give effect to this assignment.

Licences, return of information and software

As part of providing Debt Management Solutions to the Customer, D&B may provide the Customer with access to information and software owned by D&B. Access to software and information is licensed to the Customer and D&B retains all ownership rights and the Customer obtains only such rights as these Terms and Conditions explicitly grant. D&B grants the Customer, for the term that D&B provides Debt Management Solutions to the Customer, a non-exclusive, non-transferable license to use the software and information in its business subject to the limitations contained in these Terms and Conditions (the Licence). Except with the prior written consent of D&B, the Customer must not copy, reveal or make available to anyone else all or part of the information or software the subject of the licence, it being understood that the software and information is licensed for the Customer's internal use only. Without limiting any of D&B's other rights or remedies under these Terms and Conditions, D&B may immediately terminate the Licence if the Customer breaches any aspect of the Licence terms. On termination of the Licence, the Customer must immediately return, delete or destroy all originals and copies of the terminated information or software (as the case may be). D&B may, in its absolute discretion, require that the Customer returns originals and copies or may require that the Customer provides a certification that originals and copies have been deleted or destroyed.

No right, title or interest (including any intellectual property rights) in or to any trade mark, service mark, logo or trade name of D&B is granted to the Customer under these Terms and Conditions.

Privacy

The Customer must comply with the Privacy Act 1988 (Cth) and any determination or guideline issued under it, including the Credit Reporting Code of Conduct (Privacy Law) in respect of any Personal In?ormation received by it from D&B or disclosed by it to D&B. The Customer must co-operate with D&B in the resolution of any disputes, complaints or investigations in relation to Personal Information contained in or omitted from a Credit Information File held by D&B or a Credit Report issued by D&B; and to amend, correct or update any Credit Information File or Credit Report where D&B is required by the Commissioner, an Individual or under the Privacy Law to do so. The Customer must immediately notify D&B if the Customer becomes aware of any breach of these obligations.

D&B warrants that it will comply with the Privacy Law in respect of the Personal Information handled by it in the course of providing a Debt Collection Service. In giving this warranty D&B relies on the performance by the Customer of its obligations.

Indemnity and limitations of liability

For the purposes of the indemnity and limitations of liability below, damages means all liabilities, losses, damages, costs and expenses (including all legal costs on a solicitor and own client basis) whether incurred or awarded against a person and disbursements and costs of investigation, litigation, settlement, judgment, interest, fines and penalties, arising out of a right under these Terms and Conditions or a cause of action in connection with the operation of these Terms and Conditions (including any indemnity), including breach of contract, tort (including negligence) and any other common law, equitable or statutory cause of action (Damages).

The Customer indemnifies, and will hold harmless, D&B and its officers, employees, shareholders, agents and contractors (those indemnified) from and against any and all Damages that those indemnified may sustain or incur arising from or in connection with the provision by the Customer to D&B of any information under these Terms and Conditions and the observance or performance by D&B of any instructions given by the Customer in relation to the Debt Management Solutions.

To the maximum extent permitted by law, D&B excludes all liability to the Customer for Damages of any kind (whether direct, indirect, consequential, economic, special or otherwise) that may be suffered or incurred by the Customer arising under or in connection with the provision of the Debt Management Solutions. This exclusion of liability applies whether the relevant claim is made under statute, in tort (for negligence or otherwise), in equity or otherwise. However, this exclusion of liability does not exclude or limit the application of any provision of any law (including the Trade Practices Act 1974 (Cth)) where to do so would contravene that law or cause any part of this limitation of liability to be void. To the extent that the exclusion of Damages by D&B is found by a court of competent jurisdiction to contravene a law or otherwise be void, D&B's total aggregate liability to the Customer under or in connection with the provision of the Debt Management Solutions is limited to $10,000.

To the maximum extent permitted by law, D&B excludes all implied conditions and warranties except any implied condition or warranty the exclusion of which would contravene any statute or cause any part of this clause to be void (Non-Excludable Condition). D&B's liability to the Customer for breach of any Non-Excludable Condition (other than an implied warranty of title) is limited, at D&B's option, to refunding the price of the services in respect of which the breach occurred or to providing those services again.

Termination

Both D&B and the Customer may terminate the p?ovision of the Debt Management Solutions at any time by giving the other party not less than 30 days written notice. D&B may terminate this Agreement with immediate effect by giving notice to the Customer if:

  1. (a) the Customer fails to pay any amounts due and payable to D&B;
  2. (b) the Customer breaches:
    1. i. any provision of these Terms and Conditions and that breach is not capable of remedy; or
    2. ii. any provision of these Terms and Conditions which is capable of remedy but fails to remedy that breach within 7 days after receiving notice from D&B requiring it to do so; or
    3. iii. there is a change in the ownership, control or financial condition of the Customer which in D&B's reasonable opinion may affect the Customer's ability to comply with these Terms and Conditions

If provision of the Debt Management Solutions is terminated as a whole for any reason the Customer must immediately cease using any information or software the subject of a Licence and any confidential information of D&B. The Customer must pay all outstanding fees and charges owing to D&B which have been incurred by the Customer prior to such termination, in addition to any interest payable on, and all costs (including legal costs on a solicitor and own client basis) incurred in recovering, the outstanding charges.

Termination does not affect any accrued rights or remedies of either party. Each indemnity or any obligation of confidence in these Terms and Conditions survives termination. Any other term that by its nature is intended to survive termination survives termination including terms in relation to intellectual property rights, D&B's information and software and privacy.

General

These Terms and Conditions may be altered by D&B upon 7 days written notice to the Customer and, where it does, the Customer may terminate for convenience by giving written notice to D&B within that notice period.

The Customer may not assign its rights, interests or obligations under these Terms and Conditions to any person without D&B's prior written consent.

A term or part of a term of these Terms and Conditions that is illegal or unenforceable may be severed from these Terms and Conditions and the remaining terms or parts of the terms continue in force.

A party does not waive a right, power or remedy if it fails to exercise or delays in exercising the right, power or remedy. A single or partial exercise of a right, power or remedy does not prevent another or further exercise of that or another right, power or remedy. A waiver of a right, power or remedy must be in writing and signed by the party giving the waiver.

Except where this Agreement expressly states otherwise, it does not create a relationship of employment, trust, agency or partnership between the parties.

This Agreement is governed by the laws of Victoria and each party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts of Victoria.

This Agreement constitutes the entire agreement between the parties in connection with its subject matter and supersedes all previous agreements or understandings between the parties in connection with its subject matter. To avoid inconsistent provisions applying, no purchase order, confirmation or other document issued by or on behalf of the Customer will vary this Agreement.