Parties
(a)ON PANEL PTY LTD ACN 701 654 177 of Suite 1804, 101 Grafton Street, Bondi Junction NSW 2022 (‘On Panel’, ‘we’, ‘us’, ‘our’).
(b) of (‘you’, ‘your’).
Background
(c)We operate On Panel, a platform and origination service through which finance brokers submit business-purpose loan Scenarios and Applications, have them assessed against the credit policies of participating Panel Lenders, and have them packaged for submission to those Panel Lenders.
(d)You are a finance broker. You wish to use the Platform and our services to place business-purpose finance for your clients.
(e)We make the Platform and our services available to you at no charge. We are paid by the Panel Lender out of fees it charges in the ordinary course.
Operative provisions
Words used in this agreement and the rules of interpretation that apply are set out and explained in the definitions and interpretation clause at the back of this agreement.
Some definitions may be contained in the clauses to which they apply.
2.1Your role
2.1.1You may use the Platform to submit Scenarios and Applications to Panel Lenders on behalf of Applicants, on the terms of this agreement.
2.1.2You act for the Applicant. Nothing in this agreement appoints you as our agent or as the agent of any Panel Lender, and you must not represent to any person that you are.
2.1.3This agreement is not exclusive. We may enter into agreements on the same or similar terms with any other broker, and you remain free to place business outside the Platform.
2.2Our role
2.2.1We operate the Platform, we introduce Applications to Panel Lenders, and we perform the Contracted Services described in clause 3.
2.2.2We are not a lender. We do not provide credit, and we do not provide credit assistance, financial product advice, investment advice or any recommendation to any Applicant.
2.2.3We do not make credit decisions. Each Panel Lender decides in its absolute discretion whether to make an offer of credit, and on what terms.
2.2.4We do not owe you or any Applicant any duty to obtain finance, to obtain finance on any particular terms, or to obtain the best terms available.
2.2.5We do not hold, handle, advance, disburse or receive loan funds or any money belonging to an Applicant or a Panel Lender, including money for Disbursements.
2.3Independent contractor
2.3.1You are an independent contractor. You are not our employee, partner, joint venturer or general agent. You are solely responsible for the payment of income tax, superannuation, payroll tax and any other administrative or operational function in relation to running your business or your relationship with us. If we are assessed for any liability for income tax, superannuation, payroll tax or any other cost relating to our relationship with you, you must meet that cost. If we pay it, you must reimburse us on demand.
2.3.2You are not our credit representative or authorised representative, and you are not our representative for the purpose of the National Consumer Credit Protection Act 2009 (Cth).
2.4No obligation
2.4.1We are under no obligation to accept, process, assess, package or transmit any Scenario or Application, or to make the Platform available to you at any particular time.
2.4.2No Panel Lender is under any obligation to consider or approve any Application, or to provide any Product.
2.5You cannot bind us
You are unable to bind us or any Panel Lender in any way, and must not purport to do so. No obligation to make a Loan may be created by you or any Intermediary.
2.6Platform Rules
2.6.1We may publish rules, procedures, submission requirements, document standards and service levels governing the use of the Platform (Platform Rules). You must comply with the Platform Rules.
2.6.2We may amend the Platform Rules where reasonably necessary for the operation, security or legal compliance of the Platform. An amendment takes effect on the date specified in our written notice, subject to the notice periods below, and applies to Scenarios and Applications submitted after that time. An amendment to the Platform Rules cannot introduce a fee payable by you or vary any other term of this agreement. A materially adverse amendment requires at least 30 days’ prior written notice, except to the extent an earlier change is reasonably necessary to comply with law or address an urgent security risk. You may terminate by written notice before a materially adverse amendment takes effect, or promptly after notice of an urgent amendment, without waiting for the period in clause 13.2.
2.7The panel
2.7.1We may add, remove, suspend or vary Panel Lenders and Products at any time and at our sole discretion. We do not represent that any particular Panel Lender, Product or number of Panel Lenders will be available to you at any time.
2.7.2We may make different Panel Lenders or Products available to you than we make available to other brokers.
2.8Panel integrity
2.8.1Scenarios and Applications are assessed against the recorded credit policies and appetite of participating Panel Lenders in accordance with our matching methodology, on the same basis for every Panel Lender.
2.8.2We do not use or disclose any Panel Lender’s confidential credit policy, pricing, decisions or Application information for the benefit of any other Panel Lender.
2.8.3Our commercial arrangements with Panel Lenders, including any fees payable to us, do not affect our matching methodology, the assessment of a Scenario against a Panel Lender’s credit policy, whether a Panel Lender is matched to a Scenario, or the order in which results are presented to you.
2.8.4No Panel Lender can obtain preferential matching, preferential ranking, priority access to a Scenario or earlier sight of a Scenario by paying us more.
2.8.5We will not refer, introduce, pass or make available any Scenario, Application or Submission Pack to any lender that is not a participating Panel Lender, other than at your express written direction or that of the Applicant.
2.8.6Any manual change to a Platform-generated matching result is made in accordance with our matching procedures and recorded in our audit log.
2.9Previous agreements
This agreement replaces all previous agreements (whether verbal, written or otherwise) between the parties relating to your use of the Platform or the introduction of Applications to or through us.
2.10Variations
2.10.1We may vary any term of this agreement to the extent reasonably necessary to reflect changes in law, technology, our reasonable operating requirements or the cost of providing the Platform by giving you not less than 30 days’ notice in writing, so long as no variation affects the parties’ rights and obligations in respect of Applications submitted before the date the variation takes effect.
2.10.2If you do not accept a variation, you may terminate this agreement under clause 13.2 before the variation takes effect.
3.1Matching
We assess Scenarios you submit against the credit policies of Panel Lenders as recorded on the Platform and return Verdicts, subject to clause 9.
3.2Packaging and due diligence
3.2.1Following Deal Acceptance, we provide origination, procedural verification and preliminary due diligence services in respect of the Application (Contracted Services), which may include collecting and indexing documents, obtaining searches and reports, carrying out customer identification and verification, obtaining valuation quotes and arranging valuations, carrying out preliminary verification and consistency checks, and preparing and presenting a Submission Pack to the Panel Lender.
3.2.2The scope of the Contracted Services in respect of any Application is determined by our agreement with the relevant Panel Lender and by that Panel Lender’s requirements. It is not fixed by this agreement and we may vary it at any time.
3.2.3We will perform the Contracted Services with reasonable care and skill.
3.3What we do not do
We do not, and have no authority to:
3.3.1make, communicate or purport to make any credit decision, approval, conditional approval or declinature on behalf of any Panel Lender;
3.3.2issue any binding offer of credit, letter of offer, commitment or undertaking to lend;
3.3.3agree, vary, waive or release any term, condition, pricing, fee or security requirement of a Panel Lender;
3.3.4give you or any Applicant any advice, recommendation or opinion as to the merits or suitability of any Loan or Product; or
3.3.5act for you or for the Applicant in respect of the Contracted Services.
We are not a lender, an agent of any lender for the purpose of assessing or approving credit, or a party to any Loan.
3.4We are engaged by the Panel Lender
3.4.1We provide the Contracted Services to the relevant Panel Lender, under a separate agreement with that Panel Lender. We do not provide them to you or to the Applicant.
3.4.2This means that documents, information and identification we collect are collected for the purposes of that Panel Lender’s assessment, that our findings are reported to that Panel Lender, and that our contractual duties in respect of the Contracted Services are owed to that Panel Lender.
3.4.3We provide the Contracted Services as an independent contractor. We are not the agent of the Panel Lender, we are not your agent, and we are not the agent of the Applicant.
3.4.4To the fullest extent permitted by law, we owe you no duty of care in tort, no fiduciary duty and no duty in equity in respect of the Contracted Services, in addition to or independent of the express obligations set out in this agreement. Any liability we may have to you arises only under and in accordance with this agreement and clause 12.
3.4.5You must ensure the Applicant is informed of the matters in clauses 3.4.1 and 3.4.2 before you submit an Application, and that the Applicant’s consents and authorities under clause 3.6 are given on that basis.
3.4.6Nothing in this clause affects the duties you owe to the Applicant.
3.5Your cooperation
You must, and must procure that the Applicant will:
3.5.1provide the information and documents we request, promptly and in the form required;
3.5.2give the authorities, consents and directions we reasonably require to enable us to collect information, conduct searches, carry out identification and verification, obtain valuation quotes and coordinate valuation and expert appointments and reports, and prepare the Submission Pack;
3.5.3respond to our requests for further information or clarification within the time we reasonably specify; and
3.5.4notify us immediately if any information previously provided becomes inaccurate, incomplete or out of date.
3.6Authorities from the Applicant
3.6.1You warrant that, before making a Deal Acceptance or submitting an Application, you hold a mandate or written authority from the Applicant, and the consents of each individual whose personal information you provide, sufficient to authorise everything we do under this agreement: submitting the transaction to lenders in de-identified form and then in full, selecting a lender on the Applicant’s behalf, collecting and processing documents, conducting searches, carrying out identification and verification, coordinating valuations, and communicating with the Applicant and the lender.
3.6.2We do not require the Applicant to sign or accept anything of ours. We rely on your mandate and on this warranty. You must provide a copy of your mandate or authority to us on request and retain it in accordance with clause 7.9.
3.7No guarantee of outcome
We do not warrant that any Scenario will be matched, that any Application will be approved or will settle, that any Panel Lender will issue Indicative Terms, or that any Contracted Service will produce any particular outcome.
4.1The Platform and our services are free to you
4.1.1You are not required to pay us any amount for access to or use of the Platform, for any Verdict, for any Contracted Service, or in respect of any Scenario, Application or Loan submitted or introduced through the Platform. This includes any subscription fee, licence fee, listing fee, submission fee, packaging fee, success fee, brokerage, commission or share of your income.
4.1.2Schedule 1 records that no fee is payable by you under this agreement.
4.2Your remuneration
4.2.1Any commission, brokerage or fee payable to you in connection with a Loan is a matter between you and the relevant Panel Lender or the Applicant. It is not governed by this agreement.
4.2.2We do not collect, hold, receive, pay or account to you for any commission or fee payable to you, and we take no part in and accept no responsibility for its negotiation, calculation, payment, withholding or clawback.
4.2.3We do not deduct any amount from, and are not entitled to any share of, any commission, brokerage or fee payable to you by a Panel Lender or an Applicant.
4.3Fees we receive from Panel Lenders
4.3.1We are paid by the Panel Lender in respect of each Loan introduced through the Platform which settles.
4.3.2That fee is payable by the Panel Lender out of fees it charges in the ordinary course. It is not an additional cost to the Applicant, and it does not reduce any amount payable to you.
4.3.3We do not receive any fee from a Panel Lender in respect of an Application which does not settle, and we bear the cost of the Contracted Services performed on it.
4.4Future fees
4.4.1If we decide to introduce a fee payable by you, we will give you not less than 30 days’ notice in writing specifying the fee and the date from which it applies.
4.4.2A fee introduced under this clause applies only to Scenarios and Applications submitted on or after that date, and does not apply to any Application submitted before it.
4.4.3If you do not accept the fee, you may terminate this agreement under clause 13.2 before it takes effect.
4.5Disbursements are not our fees
4.5.1The cost of valuations, quantity surveyor reports, searches, reports, verification services and other third party expenses incurred in connection with an Application (Disbursements) is payable by the Applicant, unless the relevant Panel Lender agrees in writing to bear it.
4.5.2We will not order any Disbursement unless we have confirmation that the Applicant has paid the relevant provider cleared funds sufficient to meet it, or the Panel Lender’s written authority to incur it on its account. We will tell you the amount and the provider before it is ordered.
4.5.3Disbursements are not fees payable to us. They are paid directly by the Applicant or the Panel Lender to the relevant provider. We do not mark them up, receive any rebate, commission or other benefit from any third party provider in connection with them, or share in them.
4.5.4Where an Application does not proceed, a Disbursement already incurred is not refundable, except to the extent the relevant provider refunds it.
4.6Disclosure of commissions
You must disclose to each Applicant any commission, fee or other benefit which you, any Intermediary or any of your associates may receive as a result of introducing the Applicant to a Panel Lender or marketing a Product to the Applicant, to the extent required by law or by the Panel Lender.
4.7No liability to pay money
We have no liability to you to pay any money under or in connection with this agreement.
5.1How it works
5.1.1When a Panel Lender provides Indicative Terms for your Scenario, we display them to you on the Platform in full, including the amount, rate, fees, term, LVR or LTC, the security type and a de-identified description of the security, and material conditions, without identifying the Panel Lender.
5.1.2You may select those Indicative Terms by clicking Select Indicative Terms and Reveal Lender on the Platform (Deal Acceptance). Nothing needs to be signed.
5.1.3On Deal Acceptance, we disclose the Panel Lender’s identity to you and provide you with that lender’s own term sheet, issued by the lender in its own name and unaltered by us. Any offer of credit is made by the lender on its own document. We do not issue offers of credit.
5.1.4Before the Panel Lender’s identity is disclosed to you, we may provide that lender with the Scenario and information about the proposed transaction in de-identified form, so that it can assess appetite and quote.
5.1.5We do not disclose to the Panel Lender the identity of the Applicant, the Borrower or any guarantor, the address of the security property, or any document or information from which any of them could reasonably be identified, until Deal Acceptance, and then only in reliance on the authorities in clause 3.6.
5.2What Deal Acceptance means
By making a Deal Acceptance you:
5.2.1request and authorise us to commence the Contracted Services for the relevant Panel Lender in respect of that Application;
5.2.2confirm that the Applicant has given the authorities in clause 3.6;
5.2.3agree that, for 60 days from the date the Panel Lender’s identity is disclosed to you, you will not submit, resubmit, facilitate, encourage or assist the submission of that transaction, or substantially the same transaction, to that Panel Lender other than through us and will use reasonable endeavours to ensure the Applicant does not do so; and
5.2.4acknowledge the matters in clause 5.4.
5.2.5A Deal Acceptance binds you if made through your account by a user you have authorised on the Platform to make Deal Acceptances. You are responsible for controlling who you authorise.
5.2.6Deal Acceptance does not oblige you or the Applicant to proceed with the Application or to enter into any Loan, and creates no obligation to pay us any fee. Disbursements remain payable by the Applicant under clause 4.5.
5.3Already with that lender
5.3.1If, when the Panel Lender’s identity is disclosed to you, you or the Applicant already have an application lodged, a documented prior submission, a live written negotiation, or terms requested or obtained, with that lender for the same transaction, tell us through the Platform within two business days. Clause 5.2.3 then does not apply in respect of that lender, and no Disbursement will be ordered.
5.3.2The restriction in clause 5.2.3 also ends immediately if the Panel Lender declines the Application, withdraws its Indicative Terms, materially changes them without the Applicant’s acceptance, advises that it will not proceed, or fails to respond substantively within the service levels in its agreement with us.
5.4The lender’s terms
You acknowledge, and must ensure the Applicant understands, that:
5.4.1the terms provided are the Panel Lender’s and not ours;
5.4.2we are not the lender, we are not offering credit, and we are not arranging credit on our own account;
5.4.3the terms are indicative only, are not binding on the Panel Lender, and are subject to its credit approval, valuation, satisfactory due diligence, documentation and settlement, and may be withdrawn or changed at any time; and
5.4.4Deal Acceptance does not create any contractual relationship between the Applicant and the Panel Lender and does not oblige the Panel Lender to make a Loan.
5.5What you must not do
5.5.1You must not describe or present a Panel Lender’s term sheet, or anything on the Platform, to an Applicant or any other person as an approval, a conditional approval, a commitment to lend, or an assurance that finance will be provided.
5.5.2You must not describe or present anything provided by us as an offer of credit from us.
5.5.3You must provide the Panel Lender’s term sheet to the Applicant in full and unaltered. You may explain or summarise the Indicative Terms, provided that you do not misrepresent their effect, you make clear that they remain indicative and non-binding, and the Panel Lender’s document prevails in the event of any inconsistency.
5.6Withdrawal and record
5.6.1A Panel Lender may withdraw or change its terms at any time. We are not liable for any Loss arising from a withdrawal or change.
5.6.2We record each Deal Acceptance, including the account, the user, the date and time, the exact Indicative Terms and disclaimers displayed, and the version of this agreement in force, and we email you a copy of what you accepted. That record is evidence of your acceptance.
6.1Permitted Applications
6.1.1The Platform and the Contracted Services are for business-purpose lending only. You must only submit a Scenario or an Application in respect of credit which is provided wholly or predominantly for business purposes, or for investment purposes other than investment in residential property, and which is not regulated by the National Credit Code.
6.1.2You must not submit any Scenario or Application in respect of credit which is, or which you know or ought reasonably to suspect may be, regulated credit under the National Consumer Credit Protection Act 2009 (Cth) or the National Credit Code.
6.2Your responsibility for purpose
6.2.1You are solely responsible for determining and verifying the purpose of the credit applied for in each Application.
6.2.2Before submitting an Application you must make reasonable enquiries as to the actual purpose of the credit, record those enquiries, and obtain a properly completed business purpose declaration in the form required by us and by the relevant Panel Lender.
6.2.3A business purpose declaration is not sufficient on its own. You must not obtain, procure or rely on a declaration where you know, or where the circumstances of the transaction give you reason to believe, that it is untrue.
6.2.4You must record, and provide to us on request, the basis on which you satisfied yourself as to purpose, including the nature of the borrowing entity, the use of funds, and the source of repayment.
6.3Warranty
You warrant, in respect of every Scenario and Application you submit, that you have complied with clause 6.2 and that the credit applied for is not and will not be regulated credit under the National Consumer Credit Protection Act 2009 (Cth) or the National Credit Code.
6.4Notification and stop
6.4.1If at any time you become aware, or reasonably suspect, that a Scenario or Application has been incorrectly characterised as business purpose, you must notify us and the relevant Panel Lender within one business day and must not progress it further.
6.4.2We may decline, suspend or withdraw any Scenario or Application at any time where we consider that it may relate to regulated credit, without giving reasons and without liability to you.
6.5Our reliance
We rely on your characterisation of purpose and on your compliance with clause 6.2. We do not independently verify the purpose of any credit applied for. You indemnify us in accordance with clause 12 for any Loss arising from a breach of this clause 6.
7.1General obligations
You must at your own cost introduce Applicants in an efficient and business-like manner and in accordance with sound business practices at all times. Without limiting this general obligation, you must:
7.1.1comply with all applicable laws, including the Privacy Act 1988 (Cth), the AML / CTF Act, the Australian Securities and Investments Commission Act 2001 (Cth) and the Competition and Consumer Act 2010 (Cth);
7.1.2at all times hold any licences, permits, registrations and authorisations required to be held by you to perform your obligations under this agreement;
7.1.3use reasonable endeavours to ensure that Intermediaries hold any licences, permits and authorisations required to be held by them;
7.1.4inform us promptly, and in any event no later than two business days, after you become aware of any:
(a)claim that is made or threatened against you, or us, in relation to your activities under this agreement;
(b)breach of any law in respect of your conduct or the conduct of any Intermediary;
(c)suspension, cancellation, condition or investigation in respect of any licence, permit, registration, authorisation or industry association membership you hold;
(d)removal or suspension of you or any Intermediary from the panel of any lender or aggregator, other than for failing to meet volume requirements or because the lender is reducing the size of its panel; and
(e)change to your details, including your name, ownership, control, address or nominated email address;
7.1.5provide us on request with a list of your Intermediaries and inform us promptly of any changes to that list; and
7.1.6notify us without undue delay and, where reasonably practicable, within 72 hours after becoming aware of, or having reasonable grounds to suspect, any breach of your data or any data held by an Intermediary, including any information relating to us, a Panel Lender, Applicants, Applications or Loans, regardless of whether it constitutes an eligible data breach under the Privacy Act 1988 (Cth).
7.2Accurate information
7.2.1You must use your best endeavours to ensure that all information and documents you submit to us or to a Panel Lender are accurate, complete and current.
7.2.2You must not provide any information which you know, or ought reasonably to have known, is or is likely to be misleading, or which is fraudulent.
7.2.3You must not alter, edit, redact, re-date or omit any part of a document provided to you by an Applicant or a third party, other than by way of ordinary redaction of irrelevant personal information clearly identified as such.
7.2.4You must provide documents in their original form as received, and must tell us the source and date of each document you provide.
7.2.5You acknowledge that we perform defined procedural checks and cross-check information and documents for internal consistency as part of the Contracted Services, that inconsistencies identified by us are reported to the Panel Lender under our agreement with it, and that we do not authenticate any document or confirm that its contents are true.
7.3No misleading or deceptive conduct
7.3.1You must not engage in any misleading or deceptive conduct.
7.3.2You must not guarantee or represent as certain that an Application will be approved, that credit will be available or that any particular terms will apply, other than by accurately communicating a Panel Lender’s written Indicative Terms together with the qualifications applying to them.
7.3.3You must not represent that we have approved, endorsed or assessed the merits of any Application or Product.
7.4Multiple Panel Lenders
7.4.1You may submit a Scenario for assessment against the credit policies of more than one Panel Lender at the same time.
7.4.2You must not lodge a formal Application with, or make a Deal Acceptance in respect of, more than one Panel Lender at the same time for the same transaction without disclosing that fact to us and to each of them.
7.5Names, logos and advertising
7.5.1You must not use any advertising or promotional material that names a Panel Lender, or use a Panel Lender’s name or logo, in any way, without that Panel Lender’s prior written consent.
7.5.2You must not use any advertising or promotional material that names us, or use our name or logo, in any way, without our prior written consent, unless we have granted you a licence under clause 8.8.
7.5.3You must not make any public announcement regarding your relationship with us, or the identity of any Panel Lender, without our prior written consent.
7.6Responsible for Intermediaries
7.6.1You are responsible for the conduct of all your Intermediaries and must ensure that each Intermediary complies with any obligation imposed on you under this agreement. Every provision of this agreement applies to each Intermediary as if each Intermediary was you. You will be liable for any breach by any Intermediary.
7.6.2Without providing reasons, we or any Panel Lender may direct that one or more Intermediaries are not to be involved in originating Applications.
7.7Training
You must ensure that you and any Intermediaries have had appropriate training to enable them to discharge their duties under this agreement, including training in the identification of business and consumer purpose, the AML / CTF Act and the Privacy Act 1988 (Cth), and undertake any training required by any Panel Lender or by us from time to time.
7.8Professional indemnity insurance
You must take out and maintain professional indemnity insurance with a reputable insurer, for not less than $2 million for any one claim, including at least one reinstatement provision, on terms reasonably acceptable to us, and maintain the policy throughout the term of this agreement and for the period during which a claim could reasonably be made against you.
7.9Records, information and audit
7.9.1You must maintain appropriate and adequate records of your activities under this agreement, either in hard copy or electronically in a secure location that is regularly backed up, including the activities of all Intermediaries and the authorities and purpose records required by clauses 3.6 and 6.2. These records must be retained for not less than seven years after each Loan is settled or, if no Loan is settled, after the Application is submitted.
7.9.2Within 14 days of our request, you must provide any information or documents requested by us relating to the introduction of, and other dealings with, Applicants, and to your business and any Intermediary’s business in so far as they relate to dealings with us or any Panel Lender.
7.9.3During the term of this agreement, and for seven years afterwards, you must allow us, upon reasonable notice, to conduct an audit (including through on-site inspection or the appointment of an external party) of you or your Intermediaries relating to Applications submitted through the Platform.
7.9.4This clause survives any termination of this agreement.
7.10Identification of Applicants
7.10.1We carry out customer identification and verification as part of the Contracted Services, as an outsourced service provider to the relevant Panel Lender and in accordance with that lender’s standards. You must provide the information, documents and access to the Applicant that we require for that purpose.
7.10.2Where a Panel Lender appoints you or an Intermediary as its limited agent for any part of its customer identification procedures under the AML / CTF Act, or for verification of identity requirements in any State or Territory, you must use your best endeavours to properly identify each Applicant and each relevant beneficial owner, in accordance with the procedures specified by that Panel Lender.
7.10.3You must not disclose to any person any information which would contravene the tipping off provisions of the AML / CTF Act.
7.10.4We or a Panel Lender may contact or interview an Applicant for any purpose connected with a Scenario, an Application, a Loan or this agreement.
7.11Adverse circumstances
If, at any time before settlement, you become aware of any information which would adversely affect a Panel Lender’s decision to provide a Product, you must promptly inform us and that Panel Lender.
7.12Privacy consents
7.12.1You must obtain all necessary consents, authorities and disclosures to enable the collection, use and disclosure of personal and credit information between Applicants, you, us, each Panel Lender and our respective service providers, and the use of that information by each of those parties for the purposes of this agreement.
7.12.2The consents you obtain must be sufficient to permit us to collect, store and process Submitted Data, to conduct searches and identification, to obtain valuation quotes and coordinate valuation and expert appointments and reports, to transmit information to Panel Lenders, and to use it as contemplated by clause 8.4.
7.12.3You must give each Applicant a collection notice which discloses that we collect and hold their personal and credit information, that we do so for the purposes of the relevant Panel Lender’s assessment under our agreement with that lender, and how they may access our privacy policy.
7.12.4You must comply with the Privacy Act 1988 (Cth) and the Australian Privacy Principles in respect of personal information handled in connection with this agreement to the extent applicable to you. Neither party is authorised by this agreement to access or disclose credit reporting information where that access or disclosure is prohibited by law.
7.13Complaints and dispute resolution
7.13.1If membership is required by law, you must ensure that you and all your Intermediaries are members of an external dispute resolution scheme approved by ASIC (EDR) throughout the term of this agreement and for six years after the last Application is submitted.
7.13.2You must promptly provide any information or documents and do anything else reasonably required by us to enable us to deal with a dispute or complaint referred to our internal dispute resolution scheme (IDR) or our EDR.
7.13.3You must comply with any settlement or determination made under our internal dispute resolution process, and under any external dispute resolution scheme of which we are a member from time to time, to the extent that it requires you to do or refrain from doing anything.
7.14Association membership
Throughout the term of this agreement, you must be and remain a member of the Mortgage & Finance Association of Australia, the Finance Brokers Association of Australasia, or another industry association approved by us, unless we agree otherwise in writing.
7.15No churn
You must not do anything which encourages or may encourage any Applicant to refinance any Loan unless it is in the Applicant’s interest. This clause survives any termination of this agreement.
7.16Ongoing service
You must attend to any reasonable enquiry from an Applicant with respect to their Application or Loan in a timely manner, and must remain the Applicant’s point of contact for the transaction.
7.17Account for money
All money payable to a Panel Lender must be paid direct by the Applicant to that Panel Lender. If you at any time receive any money belonging to or intended for us or a Panel Lender, you must immediately pay that money to us or that Panel Lender, as the case may be.
7.18Your warranties
7.18.1You warrant to us, in respect of each Application submitted through the Platform, that:
(a)you and your representatives have not received notice of any claim in relation to the proposed Loan, and are not aware of any additional information which might reasonably adversely affect a decision in relation to the proposed Loan;
(b)there is no fraud, dishonesty, omission or negligence on your or your representative’s behalf;
(c)you hold a valid authority from the Applicant meeting the requirements of clause 3.6;
(d)to the best of your knowledge after reasonable enquiry, every document you have provided is genuine, unaltered and provided in the form in which you received it; and
(e)the Application was submitted in good faith and in compliance with the requirements of this agreement and all applicable laws.
7.18.2If we determine, acting reasonably, that a warranty in clause 7.18 has been breached in respect of an Application, that is an Event of Default, in addition to our other rights under this agreement.
7.19Release from claims
7.19.1We and any Panel Lender may disclose information regarding you, any Intermediary or any Application to lenders, industry associations, regulators, courts, tribunals or any other person where reasonably necessary for a purpose connected with an Application, a Loan, a suspected breach of this agreement or of any law, or the protection of our or a Panel Lender’s legitimate interests, including an investigation of your or any Intermediary’s conduct.
7.19.2You release us and each Panel Lender from any claim in relation to a disclosure made in good faith, on reasonable grounds and for a purpose permitted by clause 7.19.1, other than a disclosure made fraudulently, with wilful misconduct or in breach of law.
7.19.3You must obtain appropriate consents from each Applicant to enable us and any Panel Lender to disclose the Applicant’s information in connection with any such disclosure.
8.1Licence to access
We grant you a non-exclusive, non-transferable, revocable licence to access and use the Platform for the sole purpose of submitting Scenarios and Applications and administering them, for the term of this agreement.
8.2Restrictions
You must not, and must ensure that your Intermediaries, employees, agents and contractors do not:
8.2.1copy, alter, tamper with, reverse engineer, decompile, repair or attempt to repair the Platform or any part of it;
8.2.2scrape, crawl, bulk-extract, index or systematically download any part of the Platform or its output, or access the Platform by any automated means, without our prior written consent;
8.2.3use the Platform, any Verdict, any Submission Pack, any credit policy information or any other Platform output to build, train, benchmark, market or operate any product or service which competes with the Platform or the Contracted Services;
8.2.4resell, redistribute, publish or make available any Platform output to any person other than the Applicant to whom it relates and that Applicant’s advisers;
8.2.5use any credit policy information disclosed to you through the Platform for any purpose other than the Application to which it relates;
8.2.6corrupt or attempt to corrupt any material, data or information stored in or accessible through the Platform, or enter into the Platform any material, data or information you know to be incorrect, misleading or deceptive; or
8.2.7disclose, transfer or share any user identification details or access credentials provided to you with any other person, including within your own business.
8.3Security and access
8.3.1You are solely responsible for selecting, supplying and maintaining your own facilities, equipment and network connections to access the Platform, and must maintain adequate anti-virus and other security software.
8.3.2You must promptly notify us if you become aware, or reasonably suspect, that another person has obtained unauthorised access to the Platform or to any access credentials provided to you, or that there is a threat to the secure operation of the Platform.
8.4Submitted Data
8.4.1You grant us a non-exclusive, royalty-free licence to use, copy, store, process, adapt and transmit Submitted Data for the purposes of operating, administering, securing and improving the Platform, performing the Contracted Services, transmitting Applications and Submission Packs to Panel Lenders, and complying with our legal obligations. The licence continues for the term of this agreement and afterwards only for so long as reasonably required to administer an Application, comply with legal and record-retention obligations, resolve a dispute or exercise an accrued right. Our right under clause 8.4.2 to use aggregated and de-identified data is perpetual.
8.4.2We may create and use aggregated and de-identified data derived from Submitted Data for any purpose, provided that such data does not identify, and cannot reasonably be used to re-identify, you, any Intermediary or any Applicant.
8.4.3You warrant that you are entitled to grant the licence in clause 8.4.1 and that the disclosure of Submitted Data to us does not breach any law or any obligation you owe to any person.
8.5Our intellectual property
8.5.1We own, and retain ownership of, all intellectual property rights in the Platform, including its software, structure, interfaces, matching logic, the encoding and versioning of Panel Lender credit policies, Verdicts, the form and structure of Submission Packs, and all documentation, improvements and derivative works.
8.5.2Nothing in this agreement transfers or assigns to you any intellectual property right in the Platform.
8.5.3If you provide us with any feedback, suggestion or idea relating to the Platform or the Contracted Services, you assign to us all intellectual property rights in it, and we may use it without restriction and without payment to you.
8.6Availability
8.6.1We do not warrant that the Platform will be available at any particular time, or that access will be uninterrupted or error-free. We may suspend access for maintenance, upgrade, security or another reasonable operational reason, with reasonable prior notice where practicable.
8.7Suspension and cancellation
We may suspend your access, or the access of any of your representatives, to the extent reasonably necessary if we reasonably believe that an Event of Default has occurred, or that your use of the Platform creates a material legal, security or operational risk. We will give notice and reasons as soon as reasonably practicable, subject to law, and restore access when the relevant ground no longer applies. Cancellation of access, or withdrawal or decommissioning of the Platform affecting you, must be dealt with under clause 13, subject to any urgent suspension permitted by this clause.
8.8Name and logo licence
8.8.1If we grant you a non-exclusive licence to use our name and logo for the term of this agreement, this clause 8.8 applies. We may cancel the licence at any time.
8.8.2We retain the right to use the name and logo and to grant a licence to any other person.
8.8.3You must only use the name and logo in accordance with this agreement, in relation to the services contemplated by it, and in accordance with any procedures prescribed by us from time to time. You must not use the name and logo in a way which suggests that we provide credit or that we have approved any Application.
8.8.4You are not entitled to sub-licence use of any part of the name and logo without our prior written consent.
8.8.5Title in the name and logo at all times remains our property. You must not claim any title or right to use it except as provided in this agreement. If any rights in or to the name and logo are deemed to accrue to you, you must assign them to us on demand, and you appoint us and our directors as your agent and attorney to sign anything and do anything necessary to ensure they are assigned to us.
8.8.6You must at all times conduct yourself in a manner which will not damage the goodwill and reputation attached to the name and logo, and must ensure that all material used in connection with it is consistent with our standards and is not misleading or deceptive. All such material must be approved by us in writing prior to publication.
8.8.7You must immediately notify us if you become aware of any infringement, counterfeit or unfair competition against the name and logo, and must co-operate with us to stop it.
9.1What a Verdict is
A Verdict produced by the Platform is an indication only of whether a Scenario or Application, as described in the information you have submitted, appears to fall within the credit policy of a Panel Lender as recorded on the Platform at the time the Verdict is produced.
9.2What a Verdict is not
A Verdict, and any Submission Pack, assessment, calculation, check or other output of the Contracted Services, is not, and must not be treated by you or by any other person as:
9.2.1an offer of credit, an approval, a conditional approval, a pre-approval or an indicative approval;
9.2.2a term sheet, letter of offer, commitment to lend or any other promise that credit will be provided;
9.2.3credit assistance, financial product advice, a recommendation or an opinion as to the suitability of any Product for any Applicant; or
9.2.4a representation that any Panel Lender has considered or approved the Scenario or Application.
9.3Basis of Verdicts
9.3.1Verdicts are generated by applying credit policy information supplied to us by Panel Lenders. We do not independently verify that information and we do not warrant that it is accurate, complete or current.
9.3.2A Verdict depends entirely on the accuracy and completeness of the information you submit. An incomplete or inaccurate submission will produce an unreliable Verdict.
9.3.3Credit policy changes without notice. A Panel Lender may decline a Scenario or Application which the Platform indicated was within policy, or accept one which the Platform did not.
9.4Verification is not a warranty
9.4.1The verification and due diligence steps performed as part of the Contracted Services are preliminary and are performed for the Panel Lender, in accordance with clause 3.4.
9.4.2We do not warrant the accuracy, completeness, authenticity or currency of any document, search result, report or valuation obtained in the course of the Contracted Services, and we do not warrant that our verification will identify every error, omission, inconsistency or fraud.
9.4.3You must not rely on the Contracted Services in discharging any duty you owe to the Applicant, and you must conduct your own enquiries as your own obligations require.
9.5Your obligations
9.5.1You must not represent a Verdict or any output of the Contracted Services to an Applicant, an Intermediary or any other person as an approval or as an indication that finance will be provided.
9.5.2You must satisfy yourself as to a Panel Lender’s current requirements before relying on any Verdict and before making any representation to an Applicant.
9.5.3You must not reproduce a Verdict, or any part of it, in any document provided to an Applicant in a way which suggests it is a decision of the relevant Panel Lender.
9.6Exclusion
To the maximum extent permitted by law, we exclude all liability for any Loss suffered or incurred by you, any Intermediary or any Applicant arising directly or indirectly from reliance on a Verdict or on any output of the Contracted Services.
10.1Meaning
10.1.1Confidential Information means any information in respect of our business or affairs, or the business or affairs of a Panel Lender, other than information which has come into the public domain other than through a breach of this agreement.
10.1.2Without limitation, Confidential Information includes:
(a)the credit policy, pricing, appetite, criteria, Indicative Terms and Product terms of any Panel Lender, and the encoding of any of those on the Platform;
(b)the identity and composition of the panel, and the terms on which any Panel Lender participates;
(c)the Platform’s technology, processes, methodologies, techniques, systems, analyses, operating procedures, manuals, designs, specifications, models, inventions, research, formulae, source code and object code, trade secrets, ideas, knowledge, concepts and know-how;
(d)the form, structure and methodology of the Contracted Services, Submission Packs, Verdicts, quotes, shortlists and other Platform output; and
(e)financial, accounting, marketing, technical and other commercially sensitive information, including accounts, marketing plans, market research data, sales plans, service and product ideas, corporate development plans and strategies, business plans, budgets, prospects and forecasts, supplier lists, quotations, prices, databases and data surveys, client lists and information, staff and contractor lists and information, program planning, consultant’s advice, promotional information, trade marks, trade names, trade dress and logos.
10.2Your obligations
You must at all times:
10.2.1keep any Confidential Information secret and confidential, except to the extent required by law, by a regulator, by the rules of a securities exchange or by an order of a court or tribunal (having first, where lawful and practicable, notified us), or to the extent you disclose it to an Applicant for the purpose of the Application to which it relates;
10.2.2take all reasonably necessary precautions to maintain its secrecy and prevent its disclosure; and
10.2.3not use, copy or record any Confidential Information except as reasonably necessary for the performance of this agreement or another use expressly permitted by it.
10.3Acknowledgements
You acknowledge that disclosure of any Confidential Information could materially harm us or a Panel Lender, that the restrictive covenants in this clause are reasonable and necessary for the protection of the goodwill of us and each Panel Lender, and that damages may be inadequate so that we or a Panel Lender may seek injunctive or other relief in any court.
10.4Survival
This clause survives termination of this agreement.
11.1Work performed for an Application
11.1.1The Contracted Services are performed in respect of a specific Application and for the benefit of the specific Panel Lender to whom that Application is submitted.
11.1.2You must not use, or permit any person to use, a Submission Pack, or any search, report, valuation, verification record or other work product of the Contracted Services, in connection with an application to any lender other than the Panel Lender for whom it was prepared, without our prior written consent.
11.1.3Clause 11.1.2 does not prevent you or the Applicant from using a document which the Applicant provided to us, or from obtaining and using a valuation or report which the Applicant has paid for and is entitled to rely on, in accordance with its terms.
11.1.4Nothing in this clause 11 prevents you from acting in the best interests of the Applicant, including by placing the Application with a lender other than the Panel Lender for whom the work was prepared. It restricts only the use of our work product in doing so.
11.1.5This clause 11 applies only where we have performed Contracted Services in respect of the Application.
11.2Survival
This clause applies for 12 months from the date the relevant work product is produced, and survives termination of this agreement.
12.1Indemnity
You indemnify us and each Panel Lender against all Loss suffered or incurred by us or a Panel Lender to the extent caused by:
12.1.1any failure by you or any Intermediary to comply with any provision of this agreement, including the Platform Rules;
12.1.2any breach of clause 6, being business purpose lending only;
12.1.3any inaccuracy, incompleteness, alteration or falsity in any information or document provided by you or any Intermediary;
12.1.4any dishonest, fraudulent, reckless or negligent act or omission by you, any Intermediary, or any employee, agent or contractor of you or any Intermediary;
12.1.5any failure by you or any Intermediary to comply with any law;
12.1.6any absence, insufficiency or withdrawal of an authority or consent required under clause 3.6 or clause 7.12;
12.1.7any liability to a third party arising because of, or contributed to by, any act or omission by you or any Intermediary;
12.1.8defending any claim made against us or a Panel Lender in respect of your activities, except to the extent the claim arises from our own breach of this agreement, negligence, fraud or wilful misconduct; or
12.1.9any Event of Default.
12.1.10The indemnity in this clause 12.1 is reduced to the extent that the relevant Loss was caused or contributed to by our breach of this agreement, negligence, fraud, wilful misconduct or breach of law, or that of our officers, employees or contractors. We must give you prompt notice of a claim under the indemnity and a reasonable opportunity to participate in its defence or settlement, subject to law and regulatory requirements. We must not settle a claim at your expense without your prior written consent, not to be unreasonably withheld or delayed.
12.2Apportioning liability
To the extent permitted by law, you agree that proportionate liability legislation does not apply to limit your liability under the indemnity in clause 12.1, subject to clause 12.1.10. This does not prevent you disputing whether the indemnity applies or the amount properly payable under it.
12.3Recovery
Any amount payable by you to us under this agreement, including under the indemnity in clause 12.1, is a debt due and payable by you to us on demand and may be recovered by us in a court of competent jurisdiction.
12.4Limitation of our liability
12.4.1Nothing in this agreement excludes, restricts or modifies any right or remedy, or any guarantee, warranty, term or condition, implied or imposed by any law which cannot lawfully be excluded, restricted or modified. This qualification applies to every exclusion, limitation, indemnity, time limit and restriction on remedies in this agreement. Nothing in this agreement requires indemnification of a fine or penalty where prohibited by law.
12.4.2Subject to clause 12.4.1, all other liability of ours to you under or in connection with this agreement, the Platform or the Contracted Services, however arising, whether in contract, tort (including negligence), in equity, under statute or otherwise, is excluded.
12.4.3Where our liability cannot lawfully be excluded but can lawfully be limited in this way and it is fair and reasonable for us to rely on that limitation, our entire liability and your sole remedy is, at our option, the resupply of the affected service or payment of the reasonable cost of having the affected service resupplied.
12.4.4Subject to clause 12.4.1, and only to the extent that any monetary liability remains despite clauses 12.4.2 and 12.4.3, our aggregate liability to you for all claims under or in connection with this agreement is limited to $5,000.
12.4.5All claims arising from the same or substantially the same act, omission, system defect, security incident, event, circumstance or series of related events are treated as one claim.
12.4.6To the maximum extent permitted by law, we are not liable to you for any indirect or consequential loss, or for any loss of profit, loss of revenue, loss of commission, loss of opportunity, loss of anticipated saving, loss of goodwill or loss of data, however arising.
12.4.7You acknowledge that the Platform and the Contracted Services are provided to you free of charge, that we owe our duties in respect of the Contracted Services to the Panel Lender under clause 3.4, and that the limitations in this clause 12.4 are reasonable having regard to those facts.
12.4.8You must give us written notice of any claim, with reasonable particulars, within 3 months after the date on which you became aware, or ought reasonably to have become aware, of the matter giving rise to it. A failure to do so reduces any liability we otherwise have only to the extent we establish material prejudice caused by that failure.
12.4.9Nothing in clause 12.4.8 shortens a limitation period prescribed by applicable law.
12.4.10The exclusions and limitations in this clause 12 apply to every claim, however framed, and operate for the benefit of us and each of our officers, employees and contractors. We enter into and hold the benefit of this clause 12 for ourselves and as trustee for each of those persons, and each of them is entitled to rely on and enforce it, subject to applicable law.
13.1Term
This agreement commences when an authorised person accepts it on your behalf as described under Acceptance at the end of this agreement, and continues until terminated in accordance with this clause 13.
13.2Voluntary termination
Either party may terminate this agreement at any time upon 14 days’ notice to the other.
13.3Termination for default
Subject to any applicable statutory stay or restriction on enforcement, we may terminate this agreement with immediate effect, and suspend your access to the Platform without notice, by giving you notice in writing if any of the following occur (each an Event of Default):
13.3.1you are a company and:
(a)an Insolvency Event occurs with respect to you;
(b)a change in control of you occurs without our consent;
(c)any of your directors or major shareholders enters a scheme of arrangement with their creditors, is made bankrupt, or is convicted of an offence involving fraud, dishonesty, money laundering, financial crime or conduct which materially affects your ability or fitness to perform this agreement; or
13.3.2you or any Intermediary is involved in any fraud, forgery or misrepresentation in respect of a Scenario, an Application, a document, a Loan or this agreement;
13.3.3you materially breach clause 5.5, clause 6, clause 8.2, clause 10 or clause 11 and, if capable of remedy, do not remedy the breach within 14 days of written notice;
13.3.4you fail to perform any other provision of this agreement which, if capable of remedy, is not remedied within 14 days of written notice;
13.3.5distress is levied, or a judgment, order or encumbrance is enforced or becomes enforceable, against any of your property, where the amount involved is material to your ability to perform this agreement;
13.3.6you, your agents, your representatives, or an Intermediary engage in unlawful conduct which materially harms our business interests, reputation or operations, or those of any Panel Lender; this does not include a bona fide complaint, lawful regulatory disclosure or enforcement of your rights;
13.3.7you are an individual and you enter a scheme of arrangement with your creditors, are made bankrupt, or are convicted of an offence involving fraud, dishonesty, money laundering, financial crime or conduct which materially affects your ability or fitness to perform this agreement;
13.3.8you cease to hold any licence, permit, registration, authorisation, insurance or industry association membership required under this agreement;
13.3.9you are suspended or removed from the panel of any lender or aggregator for reasons relating to your conduct, other than for failing to meet volume requirements or because the lender is reducing the size of its panel; or
13.3.10you stop payment, or cease to carry on your business or a material part of it.
13.4Effect of termination
13.4.1On termination, your licence to access the Platform ends immediately and you must cease all use of the Platform, our name and our logo.
13.4.2We may, at our discretion, complete the Contracted Services in respect of any Application then on foot, or cease them. Any Application which has not settled may be dealt with directly between you, the Applicant and the relevant Panel Lender at that Panel Lender’s discretion.
13.4.3Termination does not affect any right, obligation or liability which has accrued before termination.
13.4.4Clauses 3.4, 6.5, 7.9, 7.10, 7.12, 7.15, 7.19, 8.4, 8.5, 9, 10, 11, 12, 13.4, 13.5, 14 and 15 survive termination, together with any other clause which by its nature is intended to survive.
13.5Exit audit
Upon or at any time after termination, we may require an audit of some or all of your files relating to Applications submitted through the Platform. You must co-operate with all reasonable requests in relation to it.
14.1Costs
Each party must pay its own costs in relation to the negotiation, preparation, execution and performance of this agreement.
14.2Notices
Each party must at all times maintain an email address for correspondence with the other. A notice sent to a party’s nominated email address, or given by us by publication on the Platform, is taken to be received when capable of being retrieved at that address or on the Platform, unless the sender receives an automated delivery failure notice. If received after 5 pm or on a day that is not a business day in Sydney, it is taken to be received at 9 am on the next business day.
14.3GST
14.3.1If GST is payable by a supplier (or by the representative member for a GST group of which the supplier is a member) on any supply made under or in relation to this agreement, the recipient must pay to the supplier an amount (GST Amount) equal to the GST payable on the supply. The GST Amount is payable by the recipient in addition to, and at the same time as, the net consideration for the supply.
14.3.2If a party is required to make any payment or reimbursement, that payment or reimbursement must be reduced by the amount of any input tax credits or reduced input tax credits to which the other party is entitled for any acquisition relating to that payment or reimbursement.
14.4Certificate of amount due
Our certificate as to an amount payable under this agreement is prima facie evidence of that amount in the absence of manifest error.
14.5Assignment by you
14.5.1You must not assign, novate, mortgage, charge, transfer or deal in any other way with any right or obligation under this agreement without our prior written consent.
14.5.2Any purported assignment or novation without our consent has no effect.
14.6Assignment by us
14.6.1We may assign, novate or otherwise deal with our rights and obligations under this agreement on prior written notice to you, including as part of a sale of our business, provided the assignee assumes our obligations under this agreement in full and the dealing does not materially prejudice your rights. A novation requires your prior written consent, not to be unreasonably withheld or delayed.
14.6.2You must sign anything and do anything we reasonably require to enable any dealing with this agreement.
14.6.3We may disclose information about you and this agreement to anybody involved in an actual or proposed assignment, novation or dealing by us, provided that person is bound by obligations of confidence no less onerous than those in clause 10.
14.7No partnership
Nothing in this agreement creates a partnership, joint venture, agency, fiduciary relationship or employment relationship between the parties.
14.8Entire agreement
This agreement, together with the Platform Rules, any Deal Acceptance and any schedule, constitutes the entire agreement between the parties in relation to its subject matter and supersedes all prior representations, negotiations and understandings. If there is an inconsistency, the operative clauses prevail over the schedules, and the schedules prevail over the Platform Rules, except to the extent an operative clause expressly provides otherwise.
14.9Governing law and jurisdiction
This agreement is governed by and construed under the law in force in the State of New South Wales, and each party submits to the non-exclusive jurisdiction of the courts of that State.
14.10Severability
Any provision of this agreement which is invalid in any jurisdiction is invalid in that jurisdiction to that extent, without invalidating or affecting the remaining provisions or the validity of that provision in any other jurisdiction.
14.11Counterparts and electronic execution
This agreement may be executed in any number of counterparts, all of which taken together are deemed to constitute one and the same document. This agreement may be executed electronically, and acceptance of its terms through the Platform constitutes execution by you.
14.12You acting as trustee
If you enter into this agreement as trustee of a trust, you will be liable under this agreement in your own right and as trustee of the trust. Nothing releases you from any liability in your personal capacity. You warrant that at the date of this agreement:
14.12.1all the powers and discretions conferred by the deed establishing the trust are capable of being validly exercised by you as trustee and have not been varied or revoked, and the trust is a valid and subsisting trust;
14.12.2you are the sole trustee of the trust and have full and unfettered power under the terms of the deed establishing the trust to enter into and be bound by this agreement on behalf of the trust; and
14.12.3no restriction on your right of indemnity out of, or lien over, the trust’s assets exists or will be created or permitted to exist, and that right will have priority over the right of the beneficiaries to the trust’s assets.
15.1Definitions
In this agreement, unless the context otherwise requires:
AML / CTF Act means the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth), as amended from time to time;
Applicant means a person, or a proposed borrower or guarantor, in respect of whom you submit a Scenario or an Application through the Platform;
Application means a formal application for a Product submitted by you to a Panel Lender through the Platform;
Contracted Services has the meaning given in clause 3.2;
Confidential Information has the meaning given in clause 10.1;
Disbursements has the meaning given in clause 4.5;
Event of Default means any event described as such in this agreement;
GST means any tax, levy, charge or impost implemented under the A New Tax System (Goods and Services Tax) Act 1999 (Cth) (GST Act) or an Act of the Parliament of the Commonwealth of Australia substantially in the form of, or which has a similar effect to, the GST Act;
Indicative Terms has the meaning given in clause 5.1;
Insolvency Event means the happening of any of the following events:
15.1.1an application is made to a court for an order, or an order is made, appointing a liquidator or provisional liquidator in respect of you (or proceedings are commenced or a resolution passed or proposed in a notice of meeting for any of those things);
15.1.2proceedings are initiated with a view to obtaining an order for the winding up or similar process of you, or an order is made or any effective resolution is passed for your winding up;
15.1.3you enter into, or resolve to enter into, a scheme of arrangement, deed of company arrangement or composition with, or assignment for the benefit of, all or any class of your creditors, or you propose a reorganisation, moratorium or other administration involving any class of your creditors;
15.1.4a controller is appointed to take over, or takes possession of, all or a substantial part of your assets or undertaking;
15.1.5you are, or are deemed or presumed by law or a court to be, insolvent;
15.1.6you take any step to obtain protection, or are granted protection, from your creditors under any applicable legislation, or an administrator is appointed to you; or
15.1.7anything analogous, or having a substantially similar effect, to any of the events specified above happens in respect of you;
Intermediary means any person (regardless of whether they are regulated by the National Consumer Credit Protection Act 2009 (Cth)) who introduces Applicants to or through you, either directly or through another intermediary, irrespective of the nature of the relationship between you and that person;
Loan means a loan or other credit facility made by a Panel Lender to an Applicant;
Loss means any loss, liability or cost incurred or suffered by us or a Panel Lender, including any loss, liability or cost under or in connection with an award or determination made by an external dispute resolution scheme, an award or determination reasonably made under an internal dispute resolution procedure, or a compromise or settlement reasonably agreed by us or a Panel Lender following a complaint, and irrespective of whether you were a party to the dispute;
National Credit Code means Schedule 1 to the National Consumer Credit Protection Act 2009 (Cth);
Deal Acceptance has the meaning given in clause 5.1.2;
Panel Lender means each lender, credit fund, trustee or manager participating on the Platform from time to time, and includes any assignee of a Panel Lender;
Platform means the On Panel platform and any related website, application, interface, database, software or service made available by us from time to time;
Platform Rules has the meaning given in clause 2.6;
Products means the loan and other credit products which Panel Lenders make available through the Platform from time to time;
Scenario means a set of information about a proposed loan transaction submitted by you through the Platform for assessment against the credit policies of one or more Panel Lenders;
Submission Pack means the packaged application and supporting material prepared by us and presented to a Panel Lender as part of the Contracted Services;
Submitted Data means all information, data and documents submitted by you or on your behalf through the Platform or to us, including information about Applicants, Scenarios, Applications and securities; and
Verdict means an output of the Platform indicating whether a Scenario or Application appears to fall within the credit policy of a Panel Lender, together with any reasons, conditions or criteria stated with it.
15.2Interpretation
In this agreement, unless the context otherwise requires:
15.2.1clause and subclause headings are for reference purposes only;
15.2.2the singular includes the plural and vice versa;
15.2.3words denoting any gender include all genders;
15.2.4a reference to a person includes any other entity recognised by law and vice versa;
15.2.5where a word or phrase is defined, its other grammatical forms have a corresponding meaning;
15.2.6any reference to a party to this agreement includes its executors, administrators, successors and permitted assigns;
15.2.7any reference to any agreement or document includes that agreement or document as amended at any time;
15.2.8an agreement, representation or warranty on the part of two or more persons binds them jointly and severally, and is for the benefit of them jointly and severally; and
15.2.9a reference to a statute includes all regulations and amendments to that statute, and any statute passed in substitution for that statute or incorporating any of its provisions to the extent that they are incorporated.
Schedule 1 — Fees
Fees payable by you to us
Nil.
No fee of any kind is payable by you to us under this agreement. Access to and use of the Platform, matching, the Contracted Services, the preparation of Submission Packs, and the introduction of Applicants to Panel Lenders are all provided to you at no charge.
Fees payable by us to you
Nil.
We do not pay you any commission or fee. Your remuneration in connection with a Loan is a matter between you and the relevant Panel Lender or the Applicant, in accordance with clause 4.2.
Disbursements
Valuations, quantity surveyor reports, searches and third party verification costs are payable by the Applicant under clause 4.5, directly to the relevant provider. They are not fees payable to us, we do not hold money for them, and we order them only where we have confirmation the provider has been paid or the Panel Lender has authorised the cost on its account.
How we are paid
We are paid by the Panel Lender on settlement, out of fees it charges in the ordinary course. It is not an additional cost to the Applicant and does not reduce any amount payable to you. We are paid nothing on an Application which does not settle, and we bear the cost of the work performed on it.
Changes to this Schedule
We may introduce a fee payable by you only in accordance with clause 4.4, which requires not less than 30 days’ notice in writing and applies only to Applications submitted after the effective date.
Execution
Acceptance
This agreement is accepted electronically. By clicking Agree and Create Account on the Platform when you register, the person doing so confirms that they are authorised to bind you, and you are bound by this agreement from that moment. Nothing needs to be signed.
We agree to be bound by this agreement when we make it available to you for acceptance on the Platform, and are bound from the moment you accept it.
We record the date and time of acceptance, your legal entity name, ACN or ABN and address, the account and person accepting, and the version of this agreement accepted, and we email you a copy containing those details. That record is evidence of your acceptance.
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