Smart Fee Pty Ltd ACN 168 943 486 Fee Funding Deed
FEE FUNDING TERMS
These Fee Funding Terms are made on the date and between the parties referenced in the Practice Details Schedule completed and signed by Smart Fee, the Practice and the Guarantor.
A. Smart Fee has agreed with the Practice to purchase Approved Invoices on the terms and conditions set out in these Fee Funding Terms.
B. The Guarantor agrees to guarantee all of the Practice’s and the Client’s Obligations to Smart Fee under these Fee Funding Terms.
1. Definitions and Interpretations
In these Fee Funding Terms, unless the context or subject matter otherwise require:
(a) With respect to a natural person, their heirs, successors, executors, any trust or superannuation that they or their heirs and executors control and their assigns;
(b) With respect to a body corporate:
(i) Any Related Body Corporate of it;
(ii) Any director of it or any director of any Related Body Corporate of it;
(iii) Any person (including where that person is a natural person, that person’s Affiliates under paragraph (a)) that directly or indirectly:
(b) Is Controlled by; or
(c) Is under common Control with, that body corporate; and
(iv) Any Related Entity
Approved Invoice means the Client Invoice Smart Fee has agreed to purchase from the Practice.
Business means the Practice’s business of providing professional services to its Clients.
Business Day means any day other than a Saturday, Sunday or public holiday in Brisbane, Queensland.
Claim means any allegation, debt, cause of action, Liability, claim, proceeding, suit or demand of any nature however arising and whether present or future, fixed or an ascertained, actual or contingent, whether at law, in equity, and statute or otherwise.
Client means any corporation or entity operating a business to which the Practice provides or proposes to provide professional services.
Client’s Bank Account means the bank account set out by the Client in the direct debit authority.
Client Invoice means a properly rendered tax invoice by the Practice for the provision of professional services to its Client which must include:
(a) The description of the professional services provided by the Practice to the Client;
(b) The date the Practice’s professional services were provided to the Client which must not be a date greater than twelve (12) months from the date the Practice was engaged by the Client;
(c) The duration of the professional services provided to the Client; and
(d) The fees charged to the Client by the Practice.
Control has the meaning set out in the Corporations Act and Controlled has a corresponding meaning.
Corporations Act means the Corporations Act 2001 (Cth).
Default means the failure of the Practice or the Guarantor to comply with any term of these Fee Funding Terms.
Fee Funding Terms means these terms and conditions as accepted by the Practice and the Guarantor forming the terms of a deed between Smart Fee, the Practice and the Guarantor.
Guarantor means person or persons described as such in the Practice Details Schedule.
Smart Fee means Smart Fee Pty Ltd ACN 168 943 486 together with its successors and assigns.
Invoice Amount means the amount stipulated on the Client Invoice or the Approved Invoice.
Invoice Payment Agreement Terms means the terms and conditions on which Smart Fee agrees to purchase a Client Invoice and fund the Client in respect of payment of the Approved Invoice which terms and conditions are contained on the web-site of Smart Fee at www.smartfee.com.au/fundingagreement
Liability means any liability or Obligation (whether actual, contingent or prospective), including for any loss irrespective of when the acts, events or things giving rise to the liability occurred.
Obligation means any legal, equitable, contractual, statutory or other obligation, agreement, covenant, commitment, duty, undertaking or liability.
Outstanding Amount means the amount as determined by Smart Fee to be uncollected in respect of the Instalment Payments as that term is defined in the Invoice Payment Terms.
Practice means the practice described as such in the Practice Details Schedule.
Practice’s Account means the primary business bank account in use by the Practice and specified initially by the Practice in the direct debit request signed and provided to Smart Fee or as otherwise varied from time to time with Smart Fee’s prior written approval.
Practice Details Schedule means the separate Practice Details Schedule to these Fee Funding Terms completed and signed by Smart Fee, the Practice and the Guarantor.
Principal Amount Outstanding means the Invoice Amount as set out in the Loan as that term is defined in the Invoice Payment Agreement Terms, less any amount received by Smart Fee in reduction of the Invoice Amount.
Related Body Corporate has the meaning set out in the Corporations Act.
Related Entity has the meaning set out in the Corporations Act.
Right includes a legal, equitable, contractual, statutory or other right, power, authority, benefit, privilege, remedy, discretion or cause of action.
Service means the service provided by Smart Fee of purchasing the Practice’s Approved Invoices.
In the interpretation of these Fee Funding Terms, unless the context or subject matter otherwise require:
(a) Singular includes plural and vice versa;
(b) Any gender includes every gender;
(c) A reference to a person includes corporations, trusts, associations, partnerships, a Government Authority, and other legal entities, and where necessary, include successor bodies;
(d) References to statutes include statutes amending, consolidating or replacing the statutes referred to and all regulations, orders-in-council, rules, by-laws and ordinances made under those statutes;
(e) Writing includes electronic mail;
(f) A reference to an agreement, deed or document is to that agreement, deed or document as amended, novated, supplemented or replaced from time to time; and
(g) A reference to a party includes that party’s executors, administrators, substitutes, successors and permitted assigns.
These Fee Funding Terms will commence on the date set out in the Practice Details Schedule and continue for so long as Smart Fee agrees to provide the Service to the Practice and the Practice agrees to refer Clients to Smart Fee pursuant to the terms of these Fee Funding Terms.
(a) The Practice will provide Client Invoices and Client details to Smart Fee for its consideration for funding.
(b) Smart Fee may approve or decline any Client Invoice submitted by the Practice to Smart Fee and Smart Fee will notify the Practice in writing of its decision including whether or not it will accept payment by a Client of the amount of an Approved Client Invoice by way of instalments. If Smart Fee agrees to accept payment by way of instalments then the number of instalments approved and the interest rate to apply shall be nominated in the written approval for purchase.
(c) If Smart Fee notifies the Practice that it agrees to purchase a Client Invoice, the Practice will:
(i) Ensure the Client reads and agrees in writing to the Invoice Payment Terms;
(ii) Procure any other documentation from the Client in accordance with the Invoice Payment Terms;
(iii) Procure a signed direct debit request from each Client it refers to Smart Fee in favour of Smart Fee noting whether or not the Approved Invoice has been agreed by Smart Fee to be paid by instalments;
(iv) Submit the documentation set out in paragraphs (i) to (iii) above to Smart Fee; and
(v) Provide all information required by Smart Fee to comply with its Obligations under the Anti-Money Laundering & Counter – Terrorism Finance Act 2006 (Cth).
(d) If Smart Fee approves a Client Invoice, in which case it will become an Approved Invoice:
(i) The first instalment payment (if paying by instalments) will be deducted by Smart Fee from the Client’s Bank Account; and
(ii) Upon Smart Fee receiving the first instalment payment in cleared funds from the Client, Smart Fee agrees to remit the amount set out in the Client Invoice to the Practice’s Account within seven (7) Business Days from that date.
(e) The Practice must remit any money received from its Client for the Approved Invoice or the Outstanding Amount to Smart Fee within seven (7) days from the date the Practice receives such payments from the Client. If the Client makes any payment to the Practice, the Practice remind the Client that payment of any Outstanding Amount must be made to Smart Fee.
(f) The parties agree the agreement to purchase an Approved Invoice under these Fee Funding Terms may give rise to a security interest (as that term is defined in the Personal Property Securities Act 2009 (PPSA) (Cth). To the extent Chapter 4 of the PPSA applies to any security interest arising under these Fee Funding Terms, the parties agree sections 95, 96, 117, 118, 121(4), 125, 126, 130, 132(3)(d), 132(4), 134(1), 135, 142, 143 or 157 of the PPSA do not apply to any enforcement of any security interest and that the Practice waives any right to receive a verification statement pursuant to section 157 of the PPSA.
(a) In consideration of Smart Fee paying the amount of the Client Invoice to the Practice pursuant to these Fee Funding Terms, the Practice assigns all rights, title and interest of the Practice in the Client Invoice to Smart Fee.
(b) Within 7 days of payment of the amount of the Client Invoice to the Practice, Smart Fee will issue a notice notifying the Client of the assignment of the Client Invoice and affirming that payment of the Client Invoice must be made to Smart Fee.
(c) The Practice acknowledges and agrees that the Practice shall have no further right of action against the Client in respect of the debt arising from the Client Invoice that is assigned and shall take no further steps to enforce that debt.
(d) In the event of a default by the Client in making payment to Smart Fee under an Invoice and the Practice and/or the Guarantor being required to repay to Smart Fee the whole of the funded amount, then the Practice shall be entitled on written application to Smart Fee to a subrogation or assignment of the rights of Smart Fee to the relevant assigned Invoice.
5. Client Default
(a) The Practice acknowledges and agrees that in the event that a Client fails to pay the amount of an Approved Invoice in accordance with the Invoice Payment Agreement Terms, then the Practice must pay the Outstanding Amount to Smart Fee as follows:
(i) The Practice may elect to pay the Principal Amount Outstanding at the time of default to Smart Fee within thirty (30) days of notification of Client default under the Invoice Payment Agreement Terms. Alternatively;
(ii) The Practice may elect to assume Liability for the Instalment Payments as that term is defined in the Invoice Payment Agreement Terms and as set out in the Invoice Payment Agreement. The practice may at any time during the term pay the Principal Amount Outstanding to Smart Fee.
(b) The election made pursuant to 5(a) above, must be made by the Practice within 3 days of receipt by the Practice of notification of Client default under the Invoice Payment Agreement Terms.
(c) In the event that the Practice fails to make an election pursuant to 5(b) or defaults in any payment made pursuant to 5(a) above, the Practice acknowledges and agrees that the Liability of the Practice will be for all amounts due by the Client as set out in the Invoice Payment Agreement Terms and the Invoice Payment Agreement.
6. Guarantee and Indemnity
(a) Each Guarantor, unconditionally and irrevocably:
(i) Guarantees the due and punctual payment to Smart Fee of the Approved Client Invoice and any Outstanding Amount;
(ii) Guarantees the observance and performance of the Obligations of the Practice contained in these Fee Funding Terms as accepted by the Practice and the Guarantor; and
(iii) Indemnifies Smart Fee, as a separate Obligation, for all losses, damages, liabilities, costs and expenses of any kind which Smart Fee suffers or incurs at any time directly or indirectly as a consequence of:
(a) A breach of the terms of these Fee Funding Terms or the Invoice Payment Terms; or
(b) Any of these guaranteed Obligations not being enforceable;
(c) The Approved Client Invoice and any Outstanding Amount not being recoverable;
(d) Smart Fee entering into these Fee Funding Terms with the Practice and performing Obligations under it;
(e) A payment received by Smart Fee from any entity being or being claimed to be void or voidable.
(b) The Obligations in clause 6(a) are principal Obligations which continue until all liabilities have been satisfied, noting that any monies received in payment of the Outstanding Amount will be applied as against the money claimable under the Guarantee.
(c) Each Guarantor’s Obligations continue in full force and effect even if:
(i) Subject to sub-clause (b), the Client or the Practice have no Obligations to Smart Fee at any time, or the Client’s or Practice’s Obligations are unenforceable (in whole or in part);
(ii) Smart Fee enforces or does not enforce its rights under these Fee Funding Terms or the Invoice Payment Terms (either strictly or at all) or waives or limits its rights against the Client or the Practice in any way;
(iii) The Client or the Practice is discharged or released (by Smart Fee, by operation of law or in any other way) from its Obligations (in whole or in part) except to the extent that such discharge or release is occasioned by the negligent action or inaction of Smart Fee;
(iv) Smart Fee grants credit, time or any indulgence or concession to the Client or the Practice, noting however:
(a) The Outstanding Amount claimable as against the Guarantor accrues on the same basis as if it were accruing by the Practice;
(b) The concession in paragraph (a) does not constitute any waiver of Smart Fee’s rights to pursue the Guarantor for the Outstanding Amount;
(v) The Client or the Practice is or becomes insolvent or there is a change in the members, partners or status of any of them;
(vi) If through no fault of its own, Smart Fee does not obtain title to an Approved Invoice; or its interest in an Approved Invoice is not perfected or registered, is incorrectly registered, is not enforceable (in whole or in part) or does not have the priority anticipated by these Fee Funding Terms or the Invoice Payment Terms or any other document or understanding; or Smart Fee does not enforce a security interest (either strictly or at all), releases or loses the benefit of a security interest, or does not obtain any security interest;
(vii) These Fee Funding Terms or the Invoice Payment Terms are varied or replaced in any way, whether by agreement between the Practice and Smart Fee or otherwise, provided such variation or replacement is notified to the Guarantor; or
(viii) Smart Fee does something or fails to do something which could, under the law relating to guarantees or indemnities, have affected the Guarantor’s liability or anything else happens that, apart from this clause, could result in the Obligations of the Guarantor ending or being affected.
(d) Each Guarantor must pay any money to which Smart Fee is entitled under these Fee Funding Terms or the Invoice Payment Terms immediately on demand. It must do so in cleared funds without any set-off, abatement, counterclaim or deduction. Smart Fee is not required to exercise any other right or remedies Smart Fee may have against the Client or the Practice before Smart Fee exercises its rights against a Guarantor.
(e) Until all liabilities have been satisfied, a Guarantor must not:
(i) Exercise any right as surety in competition with Smart Fee; exercise any right of subrogation or contribution; or exercise or take any step to enforce a right or claim against another party; or
(ii) Exercise any right of set-off or counterclaim against the Client or the Practice.
7. Warranties and Indemnities (Including Trustee Warranties)
(a) With respect to each Client Invoice submitted to Smart Fee, the Practice and the Guarantor each warrant as follows:
(i) That the amount of the Client Invoice represents a proper and reasonable charge for the services rendered by the Practice and that the services the subject of the Client Invoice have been properly rendered by the Practice;
(ii) That the Instalment Payments will represent a debt outstanding by the Practice and/or the Guarantor in favour of Smart Fee;
(iii) That the Client Invoice is not under any dispute, challenge or the Client has not indicated an intention not to pay the Client Invoice for whatever reason;
(iv) That they have obtained the Client’s consent to the assignment of the Client Invoice to Smart Fee;
(v) That the Client Invoice does not relate to professional services by the Practice to the Client that would constitute the provision of services for wholly or predominantly personal, domestic or household use or consumption as defined in section 5 of the National Consumer Credit Protection Act 2009 (Cth);
(vi) That they will not revoke Smart Fee’s authority to draw on the Practice’s Account;
(vii) That they will procure its Client not to revoke their direct debit authority while there are any Outstanding Amounts owing to Smart Fee;
(viii) That they will procure the signing by the Client of Smart Fee consent to disclosure of the Client’s credit information to a credit reporting agency;
(ix) That the clients referred to by the Practice are Clients;
(x) That all information provided to Smart Fee about the Practice, the Guarantor and its Clients are accurate and not misleading (whether by omission or otherwise) in any respect;
(xi) That the financial statements of the Practice disclose a true and fair view of the affairs, financial position and assets and Liabilities of the Practice and of the income, expenses, results of operations and cash flow of the Practice for the 12 month period preceding the Commencement Date (Accounts Date);
(xii) That since the Accounts Date there has been no material adverse change in the assets, Liabilities, turnover, earnings, financial condition, trading position or affairs of the Practice;
(xiii) That they will immediately notify Smart Fee, if since the Accounts Date there has been a material adverse change in the assets, Liabilities, turnover, earnings, financial condition, trading position or affairs of the Practice of greater than 10%;
(xiv) The Practice and each of the Guarantors have read and understood the Invoice Payment Terms and agree to be bound by those terms and conditions; and
(xv) The directors have the authority of the Practice to enter into these Fee Funding Terms.
(b) The Practice and the Guarantor each warrant that the directors of the Practice and the Guarantor each have the authority of the Practice to enter into these Fee Funding Terms and that each of the person(s) nominated in the Practice Details Schedule have authority to engage on behalf of the Practice for the purposes specified in the Practice details.
(c) If the Practice or a Guarantor is the trustee of a trust then the Practice or the Guarantor warrants to Smart Fee as follows:
(i) Its arrangements with Smart Fee are for the benefit of the trust and the beneficiaries of the trust and will be binding on those beneficiaries;
(ii) It has been duly appointed as trustee and is the sole trustee of the trust;
(iii) It has authority to enter into these Fee Funding Terms and it enters into these Fee Funding Terms in the proper performance of its duties as trustee;
(iv) It has the right to be fully indemnified out of the trust assets for all Obligations incurred under these Fee Funding Terms and the Funding Obligations and Smart Fee will be subrogated to its right of recoupment out of the trust assets;
(v) No action has been taken or proposed to end the trust;
(vi) It has not delegated any of its powers as trustee or exercised any power of appointment;
(vii) It shall not do anything or permit anything to be done which could cause a warranty to be untrue or which could mean that it could not truthfully repeat a warranty; and
(viii) It shall ensure that the assets of the trust are not resettled or vested; capital of the trust is not transferred or distributed without Smart Fee’s approval; and income of the trust is not segregated or distributed if doing so could affect the trustee’s ability to perform its Obligations under these Fee Funding Terms or the Invoice Payment Terms.
(a) The rights and remedies contained in these Fee Funding Terms are cumulative and are not exclusive of any rights and remedies provided at law.
(b) Any right or remedy which may be exercised, or any determination which may be made, under these Fee Funding Terms by a party may be exercised or made (or declined to be exercised or made) in the absolute discretion of that party who is not under any Obligation to do so or to give reasons for its decision.
(c) A party is entitled to enforce or take action in respect of, to the extent permitted by law, any breach of another party’s Obligations under these Fee Funding Terms notwithstanding the termination of these Fee Funding Terms.
10. General Provisions
(a) Any notice or other communication required to be given by these Fee Funding Terms before a right can be exercised (notice) must be:
(i) Signed by the party giving it or by its authorised representative; and
(ii) Delivered by hand or sent by post to the relevant address set out in these Fee Funding Terms; or
(iii) Sent to the relevant email address as notified to the parties from time to time.
(b) A party may change its address or email address for the purpose of notices by giving notice of that change to the other party in accordance with the provisions of clause 10.1(a).
(c) Notices are taken to be given:
(i) in the case of delivery by hand, when delivered;
(ii) in the case of delivery by post, on the third day after the date of posting;
(iii) if by email, then on the day of emailing, unless an emailed notice of non-delivery is received back to the sending email account. If an email is sent after 4.00pm then the date of receipt will be the day following sending of the email.
The Practice must pay or, to the extent already paid by Smart Fee, reimburse Smart Fee on demand for all costs, Claims and Liabilities (including legal costs on a full indemnity basis), charges and expenses incurred by Smart Fee, its agents, contractors and employees in connection with Smart Fee enforcing the provisions of these Fee Funding Terms or the Invoice Payment Terms.
Smart Fee may vary these Fee Funding Terms at any time by 7 days’ notice in writing to the Practice and the Guarantor. Such variations shall only apply to invoices provided to Smart Fee by the Practice after the date of notification of the variations.
10.4 Waiver and Consents
No delay or indulgence by either party in enforcing any of the provisions of these Fee Funding Terms shall prejudice or restrict the rights of that party, nor shall any waiver of those rights operate as a waiver of any subsequent breach.
10.5 Further Assurances
Each party to these Fee Funding Terms shall do all things and sign, execute and deliver all other documents as may be or reasonably required of it by Notice from another party to carry out and give effect to the terms and intentions of these Fee Funding Terms.
(a) The Practice may not assign any interest in these Fee Funding Terms without the prior written consent of Smart Fee.
(b) Smart Fee may assign any interest in these Fee Funding Terms without the consent of the Practice.
10.7 Liability of Parties
If a party consists of more than one person:
(a) An Obligation of those parties is a joint Obligation of all of them and a several Obligation of each of them;
(b) A Right given to those parties is a Right given jointly and severally to each of them, and if exercised by one of them, is deemed to be exercised jointly; and
(c) A representation, warranty or undertaking made by those parties is made by each of them.
These Fee Funding Terms may be signed or executed in a number of counterparts, with the same effect as if the signatures to or execution of each counterpart were on the same instrument.
These Fee Funding Terms shall, so far as possible, be interpreted and construed so as not to be invalid, illegal or unenforceable in any respect, but if a provision, on its true interpretation or construction is held to be illegal, invalid or unenforceable:
(a) That provision shall, so far as possible, be read down to the extent that it may be necessary to ensure that it is not illegal, invalid or unenforceable and as may be reasonable in all the circumstances so as to give it a valid operation; or
(b) If the provision or part of it cannot effectively be read down, that provision or part of it shall be deemed to be void and severable and the remaining provisions of these Fee Funding Terms shall not in any way be affected or impaired and shall continue notwithstanding that illegality, invalidity or unenforceability.
10.10 Operation of Indemnities
Each indemnity in these Fee Funding Terms survives the expiry or termination of these Fee Funding Terms. Smart Fee may recover a payment under an indemnity in these Fee Funding Terms before it makes the payment in respect of which the indemnity is given.
10.11 Whole Agreement
In relation to the subject matter of these Fee Funding Terms these Fee Funding Terms supersede all oral and written communications by or on behalf of any of the parties
These Fee Funding Terms are governed by and construed in accordance with the laws of Queensland and the Commonwealth of Australia.