Terms of Service

Terms of Service

 

Express Commission Australia Pty Ltd
ACN 127 295 176

These Standard Terms of Service (Standard Terms) form part of and should be read in conjunction with the Master Commission Assignment Agreement (Agreement) that we enter into with you after we receive your Application.

References to ‘Express Commission’, ‘we’, ‘us’ and ‘our’, as the context requires, are references to Express Commission Australia Pty Ltd ACN 127 295 176.

References to ‘you’, ‘your’ and ‘Agent’ are references to the person accessing our website and/or entering into the Agreement with us.

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

Important Warnings

We recommend before you enter into the Agreement you obtain independent legal and accounting or financial advice, to ensure you understand these Standard Terms 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 agreeing to these Standard Terms.

The provision of our services and the use of our website is also subject to our Legal Disclaimer.

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, use or transfer the Commission (other than in accordance with the Agreement). 

Express Commission enters into the Agreement in reliance of all the representations, warranties and undertakings provided by you.

We recommend you regularly visit our website to check for any variations in these Standard Terms.

Advance Fee

You agree to pay Express Commission the Advance Fee.

The Advance Fee is calculated daily. The Advance Fee rate is specified in clause 7 of the Specific Commission Assignment Agreement (SCAA).

The Minimum Advance Fee on each Commission Advance is $260.00, or as otherwise specified in clause 6 of the SCAA. This Minimum Advance Fee is applicable even if you repurchase the Commission before Settlement.

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

If there is a Default Event, Express Commission may increase the Advance Fee on any existing Commission Advance without notice to you.

Assignment Fee

You agree to pay Express Commission an Assignment Fee for our costs of entering into the SCAA.

Any such fee will be disclosed to you at clause 5 of the SCAA.

Assignment & Security Interest

By making an Application you offer to sell, transfer and assign your legal and beneficial right, title and interest in the Commission to Express Commission.

Express Commission will register a Security Interest on The Personal Property Securities Register. 

Authorisation to Complete Documents

In consideration of Express Commission agreeing to enter into the Agreement, you irrevocably authorise Express Commission to complete the Agreement, the Application and any SCAA and any other documents relating to the Agreement (or any of them that may be incomplete or incorrect) 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:

  • give effect to the documents and the agreed terms and conditions of the Agreement and the SCAA; and/or
  • 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
  • make available to you any Commission Advance under the Agreement.

Change in Circumstances

You and any Guarantor must notify us of any changes in 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:

  • change in employment, address, phone or email, workplace agreement, or any circumstance that may affect our right to receive the Commission; or
  • delay or cancellation in Settlement; or
  • changes in your financial position that may affect your ability to pay the Amount Outstanding; or
  • changes that may affect our Security Interest in the Commission; or
  • any other material event.

Conducting Business

Express Commission does not provide credit or loans and engages solely in the business of providing invoice discounting and factoring arrangements in accordance with ASIC Corporations (Factoring Arrangements) Instrument 2017/794 issued by the Australian Securities and Investment Commission (effective 19 September 2017).

Default Events & Your Obligation to Pay the Amount Outstanding

You should carefully read the Agreement to see what constitutes 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 pay the Amount Outstanding.

Upon a Default Event, Express Commission may require you to lodge a new Application to replace the Commission. An acceptable replacement Commission will be:

  • for an amount exceeding the sum of the current Amount Outstanding plus the estimated additional Advance Fee until the Settlement Date of the replacement Commission; and 
  • for an unconditional contract of sale of residential property, where Settlement is due within 90 days or less from the date of assignment; and 
  • where you are holding sufficient deposit monies (or there is a deposit bond) to cover the amount of the replacement Commission being assigned; and
  • 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; and/or
  • Express Commission may increase the Advance Fee by a further $50.00 per day on any existing Commission Advance without notice to you; and/or
  • you acknowledge that any increased Advance Fee represents a genuine pre-estimate of the costs Express Commission will incur in the management of a Default Event; and/or
  • You agree to pay interest to Express Commission on the Commission Advance at the rate that is calculated by converting the Advance Fee (and/or the increased Advance Fee) to an annual percentage interest rate.

Electronic Communication

By using our services and entering into the Agreement you consent to any provision or requirement for the giving of a signature or notice, time of receipt or sending, or other provision or requirement under any law, being satisfied by the electronic communications made in the course of our dealings with you, and as governed by the Electronic Transactions Act 1999 (Cth) and/or the equivalent acts in each State or Territory.

We may use your personal details, including any email address, facsimile 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:

  • authorise us to accept and act upon (without any verification) any such communication received from your Electronic Address;
  • 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;
  • agree to indemnify us in respect of any liability or loss arising from us acting on any electronic communication received from you;
  • agree that until you provide written notice to the contrary, we may send communications to your Electronic Address; and
  • acknowledge and agree that paper documents may not be sent to you.

Exclusions

If Express Commission publishes material concerning our business, anything so published which is incompatible with the terms 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

Ifasked to do so by Express Commission you will provide us with your personal and business financial information. Any such information will be provided within 5 Business Days of a request.

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 (but is not limited to) extreme weather conditions, public health emergencies and any strike or lock-out.

Funding Pre-Conditions

You will truthfully and 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. 

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.

You will deliver to Express Commission all documents and information relevant to the Commission or evidencing the Settlement status of the Underlying Contract.

How & When We Receive Payment

Express Commission receives the Commission at Settlement, or an earlier date if there is a Default Event or if the parties to the Underlying Contract agree to release of the Commission before Settlement.

If the deposit monies are being held by a third party you grant an irrevocable authority in favour of Express Commission directing the Commission be paid to us at Settlement. 

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 to confirm the expected Settlement Date.

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 may establish a limit on the total amount of 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

If requested by Express Commission, you will serve written notice (and provide a copy to Express Commission) of the assignment of the Commission to the Vendor, notifying the Vendor that you have assigned the your right, title and interest in the Commission to Express Commission and directing payment of the Commission to Express Commission.              

Payment to You

We may make two payments to you being the Commission Advance before Settlement and the Balance following Settlement:

  • The minimum amount of a Commission Advance is $3,000.00. Express Commission will determine the amount of any Commission Advance and will tell you the amount each Application qualifies for at clause 9 of the SCAA. Any indication of a Commission Advance by Express Commission is only indicative and is not binding until the funding actually occurs.
  • Within 2 Business Days of receiving the Commission (in cleared funds) Express Commission will pay the Balance to you. If the Amount Outstanding is more than the Commission, you will pay 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.

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:

  • 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;
  • we or another person granting time or other indulgence (with or without the imposition of an additional burden) to, compounding or compromising with or wholly or partially releasing you in any way;
  • laches, acquiescence, delay, acts, omissions or mistakes by us (excluding our fraud or gross negligence) or another person; 
  • any variation or novation of any of our rights, or alteration of any document, in respect of the Agent and/or the Guarantor;
  • the invalidity or unenforceability of an obligation or liability of a person;
  • 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.

Protecting Your Privacy & Your Consent to Credit Checks

Express Commission recognises and respects the importance of maintaining the privacy of our clients, our website users and anybody in a business relationship with our clients.

By making an Application you and the Guarantor:

  • acknowledge and agree with our Privacy Policy;
  • provide 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 (Cth).  

Sundry Fees

You agree to pay Express Commission any Sundry Fee on demand.

The current Sundry Fees are:

  • Late Payment Fee: $100.00
  • Cheque Dishonour Processing Fee: $100.00
  • Statement of Account Fee: $100.00
  • Discharge / Settlement Fee: $250.00
  • Registration Fee: $150.00

Complaints Handling Procedure

We conform with the Australian Standard AS ISO 1002-2006 (Standard) for handling complaints.

If you have a complaint, please send in writing to:

Agent Services Manager
Express Commission Australia Pty Ltd
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 to you from Express Commission will be in accordance with the Agreement.

Variation in the Standard Terms of Service

Express Commission reserves the right to vary these Standard Terms without notice to you.

The varied Standard Terms will be published on our website.

If you make an Application after a variation, that Application constitutes an agreement by you to be bound by the varied Standard Terms.

V 10.2020

Expression Commission Australia Pty Ltd ABN 52 127 295 176
© Copyright Express Commission 2020