This agreement is between you (or your company) and Express Commission Australia Pty Ltd ABN 52127295176 (here after referred to as "EC”)

These Terms of Service forms part of, and need to be read in conjunction with, the Commission Assignment Agreements that will be sent to you following preliminary approval of this application.

Important Warnings

You should not offer to assign your right to a commission if you suspect that it may cause you financial hardship in the future.

We recommend that before making a decision to enter into an agreement to assign any commission you obtain independent legal, accounting or financial advice, to ensure you properly understand these Terms of Service, and the Terms of our Commission Assignment Agreements, and Personal Guarantees, and to independantly verify that our service suits your financial position, needs, and objectives.

You must not assign a commission if you know or suspect that someone else may have a claim against it, or if the sale is not unconditional or still subject to finance or completion of construction, or if you or your company are, or may be in financial trouble or if an existing funder has priority of ownership over the commission.

You must not offer to assign your commission if you know or suspect that some other party has an existing right or is likely to attempt to claim a right to it: for example, your Agency, the Tax department, your spouse, other creditors, or anyone you know or suspect may have a current or pending claim or demand for money that you owe them.

If you have an existing loan or overdraft you should obtain the approval of your funder to use our service in conjuction with our your existing funding & their consent to giving legal priority to EC for ownership of any commissions that are assigned to us.

You must not offer to assign a commission if you know, or suspect, that you or your company are in financial trouble and may not be able to meet your debts and commitments as and when they are due.

Applications will not be accepted from people who are not permanently domiciled in Australia.

Once a commission has been assigned to us you must not access or use or transfer the assigned any part of the monies from your Trust Account. The funds must be paid directly to Express Commission within 2 working days of settlement.

Prior to assigment of any commission to us you must notify the debtor or person from whom you are entitled to receive the commission in writing that you have made an absolute assignment of your financial & legal rights to the commission. 

Fees

Definition

We purchase the commission at a discount to it's current value in return for paying you most of your unsettled commission immediately.

The cost of receiving a cash payment in exchange for assigning your commission is described in our agreements as a “discounting fee”.

The amount of the discount fee is calculated on the number of days until the sale settles and EC recieves the assigned commission from the agency. The discount fee is retained by us from the assigned commission.

Current rates

As at January 2008, our current discounting fee is calculated on a rate per $1000 per day or part thereof. Please contact Express Commission on Ph 1300 738 211 for a quotation.

The minimum discounting fee per cash advance is $260.  This minimum fee is applicable even if you choose to repay the cash advance prior to settlement.

Discounting fees continue to apply on a daily basis on all outstanding amounts. Fees commence, and are calculated from, the date money is transferred into your bank account until and including the date that the full amount of the cash advance is returned as cleared funds to EC.

Delays in settlement

If delays or cancellation occur in settlement, the discounting fee continues to accrue on the amount of cash advance or part thereof until all monies are repaid to EC.

Minimum discounting fee

EC have the right to vary its discounting fees from time to time. Notification of the new fees and the date of the fee change will be made on the web site. A variation of fees will not apply to an existing Commission Assignment unless monies are owing to Express Commission due to a Default Event. In this case the new fees will apply to any monies owing to Express Commission from the date of notification of the change in fees.

Guarantee of Payment within 4 hours.

We guarantee to make a deposit into your account within 4 hours of a fully approved application for a cash advance being submitted with all required supporting documentation & fully approved prior to 3pm Eastern Standard Time in Victoria.

The 4 hour  payment guarantee does not apply to first time  applications.

Credit Limits.

EC have the right to establish a limit on the maximum amount of funds that may be owing to us and to review the amount of this credit limit with you from time to time.

How And When We Receive Payment

EC will provide a cash advance of between 50% to 85% of the net estimated commission. EC have the right to receive 100%(one hundred percent) of the net commission from the Agency or from the solicitors directly at settlement. We are entitled to reimburse ourselves for the cash advance and all fees and costs before we forward the balance of the assigned commission ( if any) to you. We will pay any remaining commission money to you within 2 working days of receiving the assigned commission as cleared funds from the Agency.

Our right to receive payment directly from settlement

If the deposit monies are being held by a third party (solicitor or conveyancer) you agree to grant an irrevocable authority in our favour of express commission to  transfer to ec your right to receive & collect the full amount of the assigned commission from the solicitors directly at settlement. 

 
Assigned Commission Monies must not be deposited into the Agency's general account.

If the agency receives payment of money from a solicitor or conveyancer following settlement & that commission has previously been assigned to EC, these monies are no longer the property of the agency & must not be deposited into the agency's general account. The agency is required to deposit these monies directly into it's trust account & to forward payment to EC directly from the trust account. 

Default Events And Your Obligation To Repay The Cash Advance

Definition of a default event

If the settlement is delayed for more than 14 calender days or cancelled this will be deemed a "default event". In this case you must immediately repurchase the assigned commission and pay our fees or assign another commission that is acceptable to us. You should carefully read the Master Commission Assignment Agreement for a full explanation of all situations that will constitute a "default event".

What happens if the settlement is delayed or cancelled

Express Commission only agrees to purchase your commission on a full legal recourse basis.

This means that if the settlement of the sale is delayed for more than 14 (fourteen) calendar days, or is cancelled, or if EC do not receive the assigned commission for any reason, this will be deemed a “default event”. In this case you must within 7 (seven) calendar days, repay the cash advance by repurchasing the assigned commission from EC and pay our discounting fees or assign other commissions that are acceptable to us.

A commission will not be acceptable to us unless:

1. it covers the amount of the original cash advance and discounting fees (including the additional discounting fees until the new settlement date)
2. it is for an unconditional contract of sale of residential property, where settlement is due within 180 days or less from signing.
3. and the Agency are holding sufficient deposit monies or a deposit bond to cover the commission payment in the event the sale is cancelled.

Notification of a default event

If there is a default event, EC is not obliged to provide you with a written notice of default.

Our right to acquire future commissions following a default

If you fail to repurchase the commission following a default event, or are unable to assign another commission that is acceptable to us, by signing our agreements and accepting our terms of service you agree to legally assign all other existing or future commissions to EC until the amount of the commission advance and any legal costs and discounting fees are repaid in full.

Default and our legal costs

If there is a default event or failure to promptly repay the cash advance within the terms of our agreement, you are responsible for legal costs reasonably incurred by EC in seeking to enforce it’s rights in relation to these Terms of Service and the Commission Assignment Agreements that it forms a part of.

We are not responsible for delay or non payment by your Agency

EC is not responsible for additional fees charged due to any delay in the payment of the assigned commission to us caused by the actions of your Real Estate Agency. If agency fails to repay us, despite being lawfully required, to do so any delay of more than 14 (fourteen) calendar days this will constitute a “default event”.

You must notify us of any changes in your circumstances. It is important that the information that you give us (oral or written) is and remains honest and accurate, true and correct.

This means that you agree to immediately advice us of any:

• change in employment, address, phone or email or employment or workplace agreement or any circumstance that may affect our right to receive the assigned commission as agreed.
• delay or cancellation in settlement.
• change in your financial position that may affect our priority to assigned commission or your ability to repay the cash advance in the event of a delay or cancellation.

You must not assign your right or obligations under this agreement.

You are not permitted to assign or transfer any of your rights or obligations pursuant to this agreement without EC’s prior written permission. EC have the right to refuse to grant permission. If you are trading as a company any change in the directorship will be deemed an assignment for the purposes of this agreement.

Protecting Your Privacy & Your Consent To Credit Checks

EC recognise and respect 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 EC needs to collect, share and verify certain personal information with certain Third Parties. If EC cannot collect, share, and verify personal information it will be unable to assess applications for finance or manage credit facilities that relate to your account. By completing an application and agreeing to these Terms of Service you are providing consent to allow EC to obtain information from and share information with certain third parties including credit reporting agencies for the purpose of assessing your suitability for credit and collecting overdue payments in accordance with the Privacy Act 1989 including Section 18 K(1)(b), 18 N(1)9b), & 18 K (1)(h).

By making this application you are also consenting to allow us to view a copy of your employment agreement and a copy of the contract of sale to verify your entitlement to a specific commission.

If payment is not received within 2 days following the advised settlement date we reserve the right to make contact directly with the solicitors or conveyancing firms handling the sale to verify this information & confirm the expected settlement date.

Licensing

EC are 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).

EC does not provide financial or investment advise or consumer or business loans, and by completing this application you are advising us that you intend to use the cash advance for predominantly business related purposes. This means that you intend to use more than 50% of the funds for purposes relating to your business.

Variations In These Terms Of Service

EC reserve the right to vary any of these Terms of Service and any other relevant agreement from time to time by posting the amendment on this website and by notifying you by any means of communication. Your continued use of our service constitutes and agreement by you to be bound by the altered conditions. EC have the right to increase, reduce or cancel any offer of funding or offer to purchase a commission.

EC reserve the right to vary any of these Terms of Service(including the discount rate) from time to time. Any changes in our standard Terms of Service will be published on the EC web site & will apply to all new assignments that occur after this date.

Service Of Notices &  Exchange of Contracts.

Any notice or demand or agreement by EC will be in writing and can be served or exchanged by facsimile, post, email, or by hand at the salespersons stated residential address or last known residential address or usual place of business or last known place of business.

Service of notice by EC to your old address will be effective if we are not advised in writing of the change of address and your new address.

Notice is deemed to be served from the day on which it is sent at any time of the day with or without your acknowledgement.

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

You agree that any contracts or agreeements signed by you with EC can be exchanged by facsimile & that this method of exchange creates a contract that is both legally binding & unconditional. You agree to mail the original of the signed copy of any contract to EC following any exchange via facsimile.

This Application Is An Offer Of Assignment

Your completion of this application and acceptance of our Terms of Service constitutes an absolute and unconditional offer of assignment for the purposes of any Commission Assignment Agreement between yourself and EC.

By signing a Commission Assignment Agreement you are also agreeing to accept these Terms of Service as well as our Legal Disclaimer and Privacy Policy (see links).

If there is any inconsistency between these Terms of Service and the Commission Assignment Agreements, the Commission Assignment Agreement expressly overrides these Terms of Service to the extent of any inconsistency.

Personal Guarantee Of Directors & Shareholders To Repay A Cash Advance

If you wish to assign your commission and are operating as a company, you must be a director and/or shareholder of the company and you must agree to provide a personal guarantee to repay the commission advance and all fees in the event that the company assigning the commission fails to repay EC if there is a default event.

In the event of non-payment by the agency the guarantor agrees to provide EC with a caveatable interest and charge over any of your freehold & leasehold property both current & later acquired. A caveatable interest and charge is created when there is a ‘default event’ as defined in this Terms of Service document & in the Master Commission Assignment Agreement. As the guarantor you consent to EC lodging & maintaining a caveat over the guarantors property until repayment is received in full of all monies owed to EC by the guarantor.

We recommend that before agreeing to sign a personal guarantee that you should obtain independent legal advice to properly understand the nature and effect of this guarantee.

Acceptance Of Offer

Any indication of acceptance of an offer by EC is only indicative and is not binding until the assignment agreements are signed by EC.

Reassignment of our agreements 

EC are absolutely entitled to reassign to a third party any of it's commission assignment agreements, registered charges, or the benefits of your personal guarantees or indemnities, or any of  it's rights under it's agreements with you, including the collection of monies owing & the enforcement of personal guarantees.

You are absolutely prohibited from assigning any of your rights or obligations under our agreements without consent in writing from EC. EC are entitled to refuse to  consent to an assignment request.

Registered Charge

By way of additional security in respect of all monies repayable by the Agency to EC under this agreement the Agency agrees to allow EC absolute discretion & at a time of EC’s choosing, to register a fixed & floating charge over the current & future assets & property of the Agency including income or consideration from sales commissions, property management fees, all fixtures & equipment, and any proceeds from the sale of the agency or it’s rent roll and agrees it will not allow any other party to place a subsequent fixed or floating charge or debenture over any assets of the agency including book debts or commissions that have been assigned to EC. If the agency does seek additional funding it agrees that will notify the lender of the prior absolute assignment of commissions to EC. EC also reserves the right to prevent any subsequent charge being registered whilst monies are owed to it.

Complaints Handling Procedure

We agree to conform with the Australian Standard AS for handling complaints. If you have a complaint please send in writing to Agent Services Manager, Express Commission P.O. Box 2087, Wattletree Road Post Office, Malvern East, Victoria 3145. We will provide a written response within 5 (five) working days or sooner if possible.

Applicable Law

Any agreement between the parties is to be governed by the laws in the State of Victoria. In the event of a legal dispute the parties agree to submit to the jurisdiction of Victorian law. 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.