THIS FACTORING AGREEMENT (Agreement) is made between Express Pay and you or the entity you represent (‘you’ or ’your’) on the Effective Date.
RECITALS
1 You provide Services to Customers, resulting in Receivables owed by Customers to you.
2 From time to time, you may wish to sell to Express Pay, and Express Pay may wish to purchase and have assigned to it, Receivables on the terms set out in this Agreement (Invoice Factoring Service).
IT IS AGREED as follows:
1 Definitions and interpretations
1.1 Definitions
In this Agreement, unless the context requires otherwise:
Business Day means a day that is not a Saturday, Sunday or public or bank holiday in New South Wales.
Change of Control means that:
(a) a person or entity that Controls a body corporate ceases to Control that body corporate; or
(b) a person or entity that does not Control a body corporate comes to Control that body corporate.
Confidential Information means any information of a party to this Agreement which is disclosed to another party for to enter or perform this Agreement and which is imparted in circumstances or is of a nature which would indicate to a reasonable person that it is confidential, including:
(a) all business data or information including customer or partner data;
(b) all financial information;
(c) all commercially sensitive data or information; and
(d) any information capable of being considered a trade secret.
Control has the meaning given to it by section 50AA of the Corporations Act.
Corporations Act means the Corporations Act 2001 (Cth).
Customer means a customer of you.
Effective Date means the day you agree to the terms and conditions of this Factoring Agreement.
Event of Default means each event or circumstance specified in clause 6.
Express Pay means Paynow Finance Pty Ltd.
External Administrator means an administrator, receiver, trustee (including a trustee for creditors or a trustee in bankruptcy), provisional liquidator or liquidator.
GST has the meaning in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
Indemnified Party means Express Pay and its officers, employees, contractors, agents and advisers.
Insolvency Event means the occurrence of any of the following in relation to any person:
(a) it is, or states that it is, insolvent or an insolvent under administration (each as defined in the Corporations Act) or is presumed to be insolvent under an applicable law;
(b) in the case of a person that is not a body corporate:
(i) the death, mental incapacity or bankruptcy of the person (including the occurrence of an “act of bankruptcy” as defined under section 40 of the Bankruptcy Act 1966 (Cth) with respect to that person); or
(ii) such person has a security granted by them enforced against them;
(c) it is the subject of a Liquidation;
(d) an External Administrator is appointed to it or any of its assets or a step is taken to do so;
(e) an application or order is made, resolution passed, proposal put forward, or any other action taken which is preparatory to result in any of (a), (b), (c) or (d) above;
(f) it stops or suspends payment of its debts or is otherwise unable to pay its debts when they fall due; or
(g) if a trustee of a trust, the liabilities incurred by the trustee for which it has a right to be indemnified from the assets of the trust exceed the value of the assets of the trust.
Liquidation means:
(a) a winding-up, dissolution, liquidation, provisional liquidation, administration, bankruptcy or other proceedings for which an External Administrator is appointed; or
(b) an arrangement, moratorium, reorganisation, reconstruction or composition with, involving or for the benefit of any creditors.
Loss means a loss, claim, action, damage, liability, cost, charge, expense, penalty or compensation suffered, paid or incurred.
Purchased Receivable means a Receivable purchased by Express Pay pursuant to clause 2.
Purchased Receivable Amount means the amount specified in a Customer invoice for a Purchased Receivable.
Receivable means an amount owed to you by a Customer who has purchased and received Services but has not paid for such Services, which is evidenced by an invoice.
Services means any kind of aged care or disability support services supplied by you.
Tax means any tax, levy, impost, duty, rate, charge, deduction, compulsory loan or withholding of whatever kind (together with any related interest, penalty, fine or expense) that is imposed, levied or assessed by law or any government agency. It includes GST, stamp duty and transaction taxes and duties. Taxes has a corresponding meaning.
1.2 Interpretation
In this document, unless the context requires otherwise:
(a) the singular includes the plural and vice versa;
(b) words denoting any gender include all genders;
(c) where a word or phrase is defined, its other grammatical forms have a corresponding meaning;
(d) a reference to a party, clause, paragraph, schedule or annexure is a reference to a party, clause, paragraph, schedule or annexure of this document;
(e) headings are for convenience and do not affect interpretation;
(f) a reference to any document or agreement includes a reference to that document or agreement as amended, novated, supplemented, varied or replaced from time to time;
(g) a reference to “$”, “Australian dollars”, “A$” or “dollar” is a reference to Australian currency;
(h) a reference to a time is a reference to Sydney time;
(i) a reference to a party includes its executors, administrators, successors, substitutes (including persons taking by novation) and permitted assigns;
(j) a reference to writing includes any method of representing words, figures or symbols in a permanent and visible form;
(k) words and expressions denoting natural persons include bodies corporate, partnerships, associations, firms, governments and governmental authorities and agencies and vice versa;
(l) a reference to any legislation or to any provision of any legislation includes:
(i) any modification or re-enactment of the legislation;
(ii) any legislative provision substituted for, and all legislation, statutory instruments and regulations issued under, the legislation or provision; and
(iii) where relevant, corresponding legislation in any Australian State or Territory;
(m) no rule of construction applies to the disadvantage of a party because that party was responsible for the preparation of this document or any part of it;
(n) the words “including”, “for example”, “such as” or other similar expressions (in any form) are not words of limitation;
(o) a reference to an agreement other than this document includes an undertaking, deed, agreement or legally enforceable arrangement or understanding whether or not in writing;
(p) a reference to an asset includes all property of any nature, including a business, and all rights, revenues and benefits;
(q) a reference to a notice includes notices, requests, demands, consents, approvals, offers, agreements or other communications;
(r) a reference to a body (including, but not limited to, an institute, association or authority) whether statutory or not:
(i) which ceases to exist; or
(ii) whose powers or functions are transferred to another body,
is a reference to the body which replaces it or which substantially succeeds to its powers or functions;
(s) if the day on or by which any act, matter or thing is to be done is a day other than a Business Day, the act, matter or thing will be done on the preceding Business Day;
(t) an agreement, representation or warranty given by or in favour of two or more persons under this document is given by them or for their benefit jointly and severally; and
(u) an Event of Default subsists if it has not been waived in writing by, or remedied to the satisfaction of, Express Pay.
2 Sale and Purchase of Receivables
2.1 Offer
(a) You may offer to sell Receivables to Express Pay.
(b) At the time of such offer being made, the invoice will be delivered to Express Pay on your behalf.
(c) You must deliver to Express Pay such other documents and information as Express Pay may require in connection with assessing the Receivable, the Customer and your relationship with the Customer, including:
(i) any credit application, contract or other document recording the terms of trade between you and the Customer; and
(ii) any document ancillary to such a contract or other document, for instance, a personal guarantee given to you by a person associated with the Customer.
2.2 Purchase
(a) If you agree to sell the Receivable and Express Pay accepts the Receivable, Express Pay must, within three Business Days, pay 98.5% of the Purchased Receivable Amount to you. A Receivable is purchased once this amount is paid.
(b) Upon payment by Express Pay in accordance with clause 2.2(a), all of your rights, title and interest in the Purchased Receivable shall immediately be transferred and assigned to Express Pay (notwithstanding that only 98.5% of the Purchased Receivable Amount has been paid).
(c) In the event that you receive or recover a payment in respect of a Purchased Receivable from a Customer, you must:
(i) immediately notify Express Pay;
(ii) hold all funds so recovered on trust for Express Pay; and
(iii) immediately upon recovery of those funds, account to Express Pay for the whole amount recovered, without withholding, setoff or deduction on account of any matter whatsoever.
(d) You must promptly advise Express Pay of any notice received from a Customer rejecting, refusing or disputing liability for payment of a Purchased Receivable.
2.3 No assumption of obligations by Express Pay
(a) A sale of a Receivable contemplated by this Agreement will not constitute, and is not intended to result in, any assumption by Express Pay of any obligation of yours to any person in connection with that Purchased Receivable or the Services to which that Purchased Receivable pertains.
(b) You acknowledge and agree that Express Pay has no liability with respect to the Services and that you remain fully responsible for the Services.
3 Purchased Receivables
3.1 Powers of Express Pay
Express Pay (including any authorised officer of Express Pay) may at any time:
(a) notify a Customer that Express Pay has acquired that Customer’s Purchased Receivable from you and disclose such particulars of this Agreement to that Customer as it may consider expedient;
(b) collect any Purchased Receivable directly from a Customer; and
(c) extend the time for payment of a Purchased Receivable or compromise or release a Purchased Receivable on such terms and subject to such conditions as it thinks fit.
3.2 Express Pay’s discretions
The parties agree that the action taken by Express Pay to recover a Purchased Receivable is a matter for Express Pay’s complete and unfettered discretion.
4 Warranties
4.1 General Warranties
You give the following warranties, which will not merge and will survive the expiry, discharge or termination of this Agreement that all of the information provided by or on behalf of you to Express Pay in connection with this Agreement or with Express Pay’s decision whether or not to enter into this Agreement (and, if so, on what terms) is accurate and correct in every material particular.
4.2 Warranties in respect of Receivables
In respect of each offer made by you to Express Pay to sell a Receivable, you give the following warranties upon the making of each such offer, each of which will survive the expiry, discharge or termination of this Agreement:
(a) that the Receivable is (and will remain until payment) owing in full to you by the Customer, and is payable in full by the Customer to you, until assigned to Express Pay in accordance with this Agreement;
(b) that you have paid all taxes and charges, obtained all required certificates and approvals and done all other things which must, by reason of any law, rule, regulation, code or other thing be done as a prerequisite to the Receivable falling due for payment;
(c) that you have not sold or assigned the Receivable in favour of any person (other than Express Pay);
(d) that the Customer who owes the Receivable:
(i) has not raised any dispute as to its liability to pay the Receivable (or part of it) to you;
(ii) has not requested an extension of time to pay the Receivable (or part of it) to you;
(iii) has not offered to supply services and/or services to you instead of paying the Receivable (or part of it);
(iv) has not sought a credit from you that may, if granted, result in a reduction in the amount of the Receivable;
(v) has not asserted an offsetting claim against you;
(vi) is not the subject of an Insolvency Event; and
(vii) is not a related party of, affiliate of, or controlled by you;
(e) that you are not aware of any fact, matter or circumstances which may in future entitle the Customer to do any of those things listed in clause 4.2(d), and that you do not believe that it is probable (and it is not objectively probable) that the Customer will do any of those things;
(f) that you have not offered or agreed to give the Customer additional time to pay the Receivable;
(g) that the Receivable, including all information set out thereon (including dates, amounts and all other particulars) is correct and accurate in every particular and is not misleading or deceptive in any respect;
(h) that there is no legal or equitable impediment to you assigning and transferring the Receivable to Express Pay;
(i) that the Receivable (including the underlying transaction and background circumstances) is not subject to the Consumer Credit Code or other consumer protection legislation of similar effect; and
(j) that, should you collect the Receivable, you will do so only as Express Pay’s agent.
Each warranty given by you to Express Pay is taken to be made as at the date the warranty is given as well as on each date that Express Pay acquires a Receivable from you.
5 Undertakings
5.1 Notice to Express Pay
You must notify Express Pay, with reasonable details, as soon as you become aware of:
(a) (Event of Default) any Event of Default occurring; or
(b) (incorrect representation or warranty) any representation or warranty made, repeated or taken to be made or repeated by or on its behalf under this Agreement becoming untrue, incorrect or misleading (whether by omission or otherwise) when so made, repeated taken to be made or repeated.
5.2 Access and inspection
You must on reasonable notice (or, if an Event of Default subsists, at any time), allow, or arrange for, Express Pay to have access to all books of account, certificates, reports, records and other information (and make copies and take extracts of them) relating to this Agreement.
6 Events of Default
It is an Event of Default if:
(a) (failure to perform other obligations) you fail to perform or comply with any other undertaking, obligation or agreement expressed or implied in, or given in relation to, this Agreement and, if in Express Pay’s reasonable opinion, the failure is capable of remedy, it is not remedied within 5 Business Days after the failure;
(b) (incorrect representation or warranty) a representation or warranty made, repeated or taken to be made or repeated by or for you under or in connection with this Agreement is or becomes untrue, incorrect or misleading when made, repeated or taken to be made or repeated;
(c) (Insolvency) an Insolvency Event occurs in relation to you; or
(d) (change in ownership or control) a Change of Control occurs in relation to you.
7 Consequences of an Event of Default
If an Event of Default has occurred, then
(a) in relation to an Event of Default which is capable of being rectified and which has not been rectified by you within 5 Business Days of receiving written notice from Express Pay of the obligation to rectify the Event of Default; or
(b) in relation to an Event of Default which is not capable of rectification,
Express Pay may, by written notice to you, do anything it is lawfully able to do including but not limited to terminating this Agreement with immediate effect.
8 Appointment of attorney
You irrevocably appoint Express Pay and each officer or delegate of Express Pay severally as its attorney to do anything which it must do under this Agreement and you agree to ratify anything done by such an attorney.
9 Termination
(a) This Agreement may be terminated:
(i) by either party at any time upon giving 30 days’ written notice to the other; and
(ii) immediately by Express Pay if there is an Event of Default.
(b) Termination of this Agreement will not affect Express Pay’s rights under this Agreement in respect of Receivables purchased before the termination date.
10 Costs and expenses, taxes and GST
10.1 Parties to bear own costs
Each party must bear their own costs of the performance of their obligations under this Agreement.
10.2 GST
The amounts set out in this Agreement have been calculated without regard to GST. In the event that Express Pay must pay any GST on a supply made by it to you in connection with this Agreement, Express Pay may, in addition to any amount or consideration payable under this Agreement, recover from you an additional amount on account of that GST, such amount to be calculated by multiplying the relevant amount or consideration payable by you for the relevant supply by the prevailing GST rate.
11 Indemnities
(a) You indemnify each Indemnified Party against, and must pay to an Indemnified Party on demand amounts equal to, any Loss which that person, suffers, incurs or is liable for (including fees payable to professional advisers), as a result of or in connection with:
(i) any wilful or negligent act or omission by you arising out of the performance by you of your obligations under this Agreement;
(ii) any breach of a term of this Agreement by you;
(iii) an Event of Default; or
(iv) an Indemnified Party relying on information provided or approved by you in connection with this Agreement or the transactions contemplated by it.
(b) Any indemnity or reimbursement obligation by you
(i) is a separate, irrevocable, unconditional and continuing obligation, independent of your other obligations under this Agreement; and
(ii) survives the termination of this Agreement.
12 Assignment
(a) You must not transfer, assign or novate any of its rights or obligations under this Agreement without the prior written consent of Express Pay.
(b) Express Pay may, at any time, transfer, assign or novate all or any of its rights or obligations under this Agreement without having to obtain your consent.
13 No reliance or other obligations
You agree that you have not entered into this Agreement in reliance on any representation, warranty, promise, statement or opinion made by Express Pay or any person on behalf of Express Pay other than those set out in this Agreement (if any).
14 Notices
14.1 Method
(a) To you. Express Pay may provide any notice to you under this Agreement by sending a message to the email address then associated with your invoice. Notices provided to you by email will be effective when Express Pay sends the email. It is your responsibility to keep your email address current. You will be deemed to have received any email sent to the email address then associated with your invoice when Express Pay sends the email, whether or not you actually receive the email.
(b) To Express Pay. To give Express Pay notice under this Agreement, you must contact Express Pay as follows:
(i) by phone on [insert]; or
(ii) by email at [insert].
14.2 Receipt
A notice given in accordance with clause 14.1 is taken as having been given and received if sent by email, 30 minutes after the email is sent unless the sender receives a delivery failure notification but if the delivery, receipt or transmission is not on a Business Day or is after 5.00pm on a Business Day, the notice is taken to be received at 9.00am on the next Business Day.
15 General
15.1 Confidential information
A party may not disclose any Confidential Information of another party or the terms of this Agreement to any person except:
(a) with the prior written consent of the other party;
(b) to its officers, employees, professional advisers, consultants, financiers to whom (and to the extent to which) it is necessary to disclose the information in order to seek professional advice or to properly perform the obligations under this Agreement and provided they are obliged to keep the information disclosed confidential;
(c) where the information has come into the public domain through no fault of that party;
(d) as is necessary to obtain any consent or approval necessary to give effect to this Agreement;
(e) to enforce its rights or to defend any claim or action arising out of or in connection with this Agreement; or
(f) as required by applicable law, after first consulting with the other party to the extent practicable having regard to those obligations about the form and content of the disclosure.
15.2 Consents and waivers
The failure of any party at any time to insist on performance of any provision of this Agreement is not a waiver of its right at any later time to insist on performance of that or any other provision of this Agreement.
15.3 Severability
A provision of this Agreement that is illegal, invalid or unenforceable in a jurisdiction is ineffective in that jurisdiction to the extent of the illegality, invalidity or unenforceability. This does not affect the validity or enforceability of that provision in any other jurisdiction, nor the remainder of this Agreement in any jurisdiction.
15.4 Modification
Express Pay may modify this Agreement at any time by providing you at least 30 days’ advance notice in accordance with clause 14.1(a). By continuing to use the Invoice Factoring Service offered by Express Pay after the effective date of any modifications to this Agreement, you agree to be bound by the modified terms.
15.5 Further steps
Each party must promptly do all further acts and deliver all further documents (in such form and content reasonably satisfactory to both parties) reasonably requested by the other party to give effect to this Agreement.
15.6 Governing law and jurisdiction
This Agreement is governed by the laws of New South Wales. Each party irrevocably and unconditionally submits to the non-exclusive jurisdiction of the courts of that place (and any court of appeal).
15.7 Counterparts
This Agreement may be executed in any number of counterparts. Each counterpart constitutes an original of this Agreement, all of which together constitute one instrument.
15.8 Entire agreement
This Agreement forms the entire Agreement between the parties and supersedes any and all other agreements, either oral or in writing, between the parties in relation to the subject matter of this Agreement.
