TERMS AND CONDITIONS

Automated Letter of Demand Service

These Terms and Conditions ("Terms") govern the use of the automated Letter of Demand service ("Service") provided jointly by:

Xservices Pty Ltd (ABN 39 642 264 720); and
60018 Pty Ltd (ABN 29 656 807 000),

(together referred to as the Providers).

By submitting a debt through this Service, the person or entity submitting the debt ("Client") acknowledges that they have read, understood and agree to be legally bound by these Terms.

1. Client Warranty

The Client warrants, represents and agrees that:

(a) all information, documents and data submitted through the Service are true, complete, accurate and not misleading;

(b) the Client has made all reasonable enquiries to verify the accuracy of the information before submission;

(d) the Client has the lawful authority to submit the debt and instruct the Providers to issue the Letter of Demand;

(e) issuing the Letter of Demand will not breach any law, court order, contractual obligation or any right of any third party.

The Client acknowledges that the Providers rely entirely upon the information supplied by the Client and undertake no independent verification of that information.

2. Automatic Generation of Letter of Demand

The Client acknowledges and agrees that:

(a) immediately upon submission of the debt information, the Service may automatically generate and issue a Letter of Demand to the nominated debtor without any manual review by either Provider;

(b) the Letter of Demand is generated solely from the information supplied by the Client;

(c) once submitted, the Client may not be able to amend, suspend or cancel the generation or issue of the Letter of Demand.

3. Service Fees

The Client agrees that:

(a) the applicable fee displayed on the website at the time of submission is payable for the Service;

(b) the Providers are authorised to charge the nominated payment method immediately upon submission;

(c) if the payment cannot be processed or is reversed, declined or otherwise unsuccessful for any reason, the Client remains fully liable for payment of the applicable fee;

(d) the Providers may recover any unpaid fees as a debt due and payable.

4. Recovery of Outstanding Amounts

If any amount payable by the Client to either Provider remains unpaid, the Client agrees to fully indemnify and reimburse the Providers for all costs, expenses and disbursements incurred in recovering that amount.

Without limitation, recoverable amounts include:

internal administration costs;
staff time;
debt collection costs;
collection agency fees;
tracing costs;
legal costs;
solicitor costs;
barrister costs;
court filing fees;
enforcement expenses;
investigator fees; and
all other costs incurred on a full indemnity basis,

whether or not such costs have actually been paid by the Providers.

The Client agrees that all such amounts constitute a liquidated debt immediately due and payable.

5. Non-Refundable Service

The Client acknowledges that:

(a) due to the automated nature of the Service, the Letter of Demand may be generated and issued immediately after submission;

(b) once the Letter of Demand has been generated or issued, the Service has substantially or fully been performed;

6. Client Responsibility for Further Recovery

The Client acknowledges that the Letter of Demand is only the initial stage of debt recovery.

The Client confirms that it has considered and accepts responsibility for determining whether and how it intends to pursue any further recovery action should the debtor fail to comply with the Letter of Demand, including (without limitation):

engaging debt collectors;
commencing legal proceedings;
negotiating settlement;
writing off the debt; or
taking any other recovery action.

The Providers make no representation that any debt will be recovered.

7. Assumption of Risk

The Client acknowledges that issuing a Letter of Demand may result in consequences including, without limitation:

disputes;
complaints;
damaged commercial relationships;
litigation;
counterclaims;
regulatory complaints;
reputational damage; or
any other legal or commercial consequence.

The Client voluntarily assumes all risks associated with instructing the Providers to issue the Letter of Demand.

8. Incorrect Information

The Client acknowledges that the Providers do not verify the information supplied.

The Client accepts sole responsibility for any loss, liability, damage, claim, action or expense arising from:

incorrect information;
incomplete information;
misleading information;
outdated information;
false information; or
information submitted without authority.

The Providers shall have no liability whatsoever arising from reliance upon the information supplied by the Client.

9. Monitoring of Outcomes

The Client acknowledges that it is solely responsible for monitoring:

whether the Letter of Demand has been received;
any response from the debtor;
any payment received;
any dispute raised;
any legal consequences; and
any other impact arising from the issue of the Letter of Demand.

The Providers are under no obligation to monitor or follow up the outcome unless separately engaged under another agreement.

10. Client Responsibility

The Client accepts sole responsibility for all consequences arising from the submission of the debt and the issue of the Letter of Demand.

The Client acknowledges that the Providers merely provide an automated technology platform and associated services in accordance with the Client's instructions.

11. Release and Exclusion of Liability

To the maximum extent permitted by law, the Client releases and forever discharges each Provider, together with their directors, officers, employees, contractors and agents, from any liability, claim, loss, damage, cost or expense arising directly or indirectly from:

(a) the issue of the Letter of Demand;

(b) the wording or contents of the Letter of Demand generated from the Client's information;

(d) any failure of the debtor to respond;

(e) any payment not being recovered;

(f) any dispute with the debtor;

(g) any legal proceedings arising from the Letter of Demand;

(h) any information supplied by the Client; or

(i) any reliance placed upon that information by the Providers.

Nothing in these Terms excludes any liability which cannot lawfully be excluded under the Competition and Consumer Act 2010 (Cth) or any other applicable law.

12. Client Indemnity

The Client irrevocably indemnifies and must keep indemnified each Provider, their directors, officers, employees, contractors and agents against any and all claims, proceedings, liabilities, damages, losses, costs and expenses (including solicitor-client legal costs on a full indemnity basis) arising from or in connection with:

(a) any breach of these Terms;

(b) any information supplied by the Client;

(d) any allegation that the debt was not owing;

(e) any allegation that the Letter of Demand was inaccurate, misleading, defamatory or otherwise unlawful;

(f) any regulatory investigation;

(g) any legal proceedings connected with the Letter of Demand; and

(h) the Client's use of the Service.

This indemnity is continuing, irrevocable and survives termination of these Terms.

13. No Legal Advice

The Client acknowledges that:

(a) the Service is an automated document generation service;

(b) neither Provider provides legal advice through this Service;

14. Governing Law

These Terms are governed by the laws of Victoria, Australia.

The Client irrevocably submits to the exclusive jurisdiction of the courts of Victoria and any courts competent to hear appeals from those courts.

15. Acceptance

By clicking "I Agree", submitting the debt information, or otherwise using the Service, the Client:

confirms that they have read and understood these Terms;
warrants that they have authority to bind the Client;
agrees to be legally bound by these Terms; and
authorises the Providers to immediately generate and issue the Letter of Demand using the information submitted.

16. Privacy and Authority to Use Personal Information

The Client acknowledges and agrees that:

(a) the Client has lawfully collected and holds all personal information submitted through the Service;

(b) the Client has all necessary legal authority to provide that information to the Providers for the purposes of issuing the Letter of Demand and providing related services;

(c) the Providers may collect, store, use, disclose and process the information provided by the Client for the purposes of:

generating and issuing the Letter of Demand;
communicating with the debtor;
verifying payment;
debt recovery activities;
maintaining business records;
complying with legal obligations; and
enforcing these Terms.

The Client indemnifies the Providers against any claim arising from the collection, disclosure or use of personal information supplied by the Client.

17. Electronic Communications and Electronic Acceptance

The Client agrees that:

(a) these Terms may be accepted electronically by clicking "I Agree", ticking an acceptance box, submitting a debt, or otherwise using the Service;

(b) such acceptance constitutes a legally binding agreement;

(d) electronic records maintained by either Provider constitute conclusive evidence of the Client's instructions unless proven otherwise.

18. No Legal Advice

The Client acknowledges that:

(a) the Service is an automated document generation platform;

(b) neither Provider is acting as the Client's solicitor;

(d) the Client is solely responsible for determining whether issuing a Letter of Demand is appropriate in the circumstances;

(e) the Client has had the opportunity to obtain independent legal advice before using the Service.

19. No Solicitor-Client, Agency or Fiduciary Relationship

Nothing contained in these Terms creates:

a solicitor-client relationship;
a fiduciary relationship;
an agency relationship;
a partnership;
a joint venture; or
any employment relationship

between the Client and either Provider.

The Providers act solely as service providers in accordance with the Client's instructions.

20. Right to Refuse, Suspend or Cancel the Service

The Providers may, at their absolute discretion and without providing reasons:

refuse to issue a Letter of Demand;
suspend processing;
cancel the Service;
request further information;
decline any submission; or
terminate access to the Service.

Without limitation, this may occur where the Providers reasonably believe:

the information may be false or misleading;
the debt appears disputed;
the submission may be unlawful;
the Service may expose either Provider to legal or reputational risk;
fraud or misuse is suspected.

The Client is not entitled to compensation arising from any refusal.

21. Limitation of Liability

To the maximum extent permitted by law, the total aggregate liability of the Providers arising out of or in connection with the Service, whether in contract, tort (including negligence), statute, equity or otherwise, is limited to the amount actually paid by the Client for the particular Letter of Demand giving rise to the claim.

The Providers are not liable for any indirect, incidental, special, exemplary or consequential loss, including:

loss of profits;
loss of revenue;
loss of opportunity;
loss of goodwill;
business interruption;
legal costs;
reputational damage; or
punitive damages.

22. Australian Consumer Law

Nothing in these Terms excludes, restricts or modifies any consumer guarantee or other right which cannot lawfully be excluded under the Competition and Consumer Act 2010 (Cth) or any other applicable legislation.

Where liability cannot be excluded, the liability of the Providers is limited, to the maximum extent permitted by law, to:

supplying the Service again; or
paying the cost of supplying the Service again,

at the Providers' election.

23. Joint and Several Rights of the Providers

The Client acknowledges that the Service is jointly operated by:

Xservices Pty Ltd (ABN 39 642 264 720); and
60018 Pty Ltd (ABN 29 656 807 000).

Each Provider is entitled, both jointly and severally, to enforce these Terms.

Every release, exclusion of liability, limitation of liability, indemnity, payment obligation and other protection contained in these Terms is given separately and independently in favour of each Provider and may be enforced by either Provider individually or both Providers jointly.

The insolvency, cessation of business or inability of one Provider to enforce these Terms shall not affect the rights of the other Provider.

24. Force Majeure

Neither Provider is liable for any delay or failure to perform the Service resulting from events beyond its reasonable control, including but not limited to:

internet outages;
software failures;
cyber attacks;
email failures;
telecommunications interruptions;
natural disasters;
government action;
industrial disputes; or
third-party service failures.

25. Severability

If any provision of these Terms is held to be invalid or unenforceable, that provision shall be severed and the remaining provisions shall remain in full force and effect.

26. Entire Agreement

These Terms constitute the entire agreement between the Client and the Providers concerning the Service and supersede all previous discussions, negotiations and representations.

27. Amendments

The Providers may amend these Terms from time to time.

The version published on the website at the time the Client submits a debt shall apply to that submission.

28. Survival

The following clauses survive completion or termination of the Service:

Fees
Recovery Costs
Indemnities
Releases
Limitation of Liability
Privacy
Governing Law
Dispute Resolution
Any clause intended by its nature to survive.

29. Third-Party Claims and Regulatory Indemnity

29.1 The Client irrevocably indemnifies and must keep indemnified each Provider, their related bodies corporate, directors, officers, employees, contractors, consultants and agents (each an Indemnified Party) against any and all liabilities, claims, actions, proceedings, demands, judgments, settlements, losses, damages, penalties, fines, compensation, costs and expenses (including solicitor and client legal costs, counsel's fees, expert fees and other legal expenses on a full indemnity basis) arising directly or indirectly out of or in connection with:

(a) the Client's submission of any debt or information through the Service;

(b) the issue, attempted issue or delivery of any Letter of Demand;

(c) any allegation that the debt was not owing, was disputed, had previously been paid, was statute-barred, was unenforceable, was incorrectly calculated, or otherwise should not have been pursued;

(d) any allegation that the information supplied by the Client was false, inaccurate, incomplete, misleading or deceptive;

(e) any allegation that the Client lacked authority to submit the debt or instruct the Providers;

(f) any allegation that the Letter of Demand was misleading, deceptive, inaccurate, defamatory, oppressive, unconscionable, intimidating, unlawful or otherwise inappropriate;

(g) any allegation of negligence, misleading or deceptive conduct, defamation, injurious falsehood, malicious falsehood, harassment, unconscionable conduct, abuse of process, interference with contractual or commercial relationships, invasion of privacy or breach of confidence;

(h) any alleged breach of any law, regulation or industry code arising from the Client's instructions or the information supplied by the Client;

(i) any complaint made by the debtor or any third party to any government authority, regulator, tribunal, ombudsman or industry body;

(j) any investigation, inquiry, audit, enforcement action or prosecution commenced by any government authority, regulator or statutory body relating to the debt, the Letter of Demand or the Client's instructions;

(k) any court proceedings, tribunal proceedings, arbitration or mediation arising from or connected with the Letter of Demand;

(l) any settlement entered into by an Indemnified Party in relation to any claim, provided the settlement is reasonable in the circumstances; and

(m) any enforcement action undertaken to recover amounts payable under these Terms.

29.2 Duty to Reimburse

The Client must reimburse each Indemnified Party immediately upon written demand for all amounts referred to in clause 29.1.

The Providers are not required to first:

defend the claim;
contest liability;
commence proceedings against another person; or
exhaust any available insurance,

before seeking reimbursement from the Client.

29.3 Continuing Indemnity

This indemnity:

(a) is continuing;

(b) is irrevocable;

(d) survives termination of these Terms;

(e) survives any refund of fees;

(f) is independent of the Client's other obligations under these Terms; and

(g) is not affected by any act, omission, delay, waiver or negligence of either Provider.

29.4 No Duty to Verify

The Client acknowledges that neither Provider has any obligation to:

verify the existence of the debt;
investigate the facts;
determine whether the debt is legally recoverable;
assess the merits of any dispute;
confirm the identity of the debtor; or
review any supporting documentation,

before generating or issuing the Letter of Demand.

29.5 Client Assumes All Legal Responsibility

The Client acknowledges and agrees that:

(a) the decision to issue a Letter of Demand is made solely by the Client;

(b) the Providers merely provide an automated technology platform that generates documents in accordance with the Client's instructions;

(d) any legal consequences arising from the issue of the Letter of Demand remain solely the responsibility of the Client.

29.6 Cooperation

If any claim is made against an Indemnified Party, the Client must immediately:

provide all requested documents;
provide witness statements if requested;
assist with responding to regulators;
assist with defending any proceedings;
attend court if required; and
do everything reasonably requested by the Providers.

The Client is liable for all costs incurred by the Providers in obtaining such cooperation if the Client fails to comply.

29.7 No Limitation

The indemnity in this clause is not limited by:

any exclusion of liability contained elsewhere in these Terms;
the amount of fees paid by the Client;
any insurance maintained by the Providers; or
termination of these Terms.

30. Reliance on Client Instructions

The Client acknowledges that the Providers act solely upon the instructions and information supplied by the Client through the Service.

The Providers are entitled to rely upon those instructions as being complete, accurate and authorised without making any enquiry or conducting any investigation.

The Client waives any right to allege that either Provider should have:

(a) investigated the debt;

(b) verified any document;

(d) determined whether the debt was legally recoverable;

(e) reviewed the legal merits of the claim; or

(f) refused to issue the Letter of Demand.

The Client acknowledges that the Providers owe no duty to independently verify the Client's instructions and are entitled to act exclusively upon those instructions.