(a) The Client must comply with:
(1) this
document;
(2) the Provider’s Privacy Policy and
any other terms or policies displayed on the
Site;
(3) all
reasonable requests or requirements of the
Provider; and
(4) all laws.
(b) The Client
must:
(1) obtain, and provide to the
Provider, any access, consents, approvals,
licences and permissions necessary to enable
the Provider to provide the Services;
(2) not on-sell,
re-supply, re-distribute or otherwise
provide the Services to any third party
(whether for commercial profit or gain or
otherwise) without the Provider’s prior and
express written consent; and
(3) promptly notify the
Provider of any change to the Client’s
address, email address and telephone number.
(c) The
Client accepts responsibility for its unique
user name and password for the Site and
ensuring that these details are kept in a
secure place.
(d) The Client agrees to immediately
notify the Provider if its user name and/or
password have been used without its
authorisation.
(e) The Client acknowledges that when
it has applied for a loan jointly with
another party or several parties (Joint
Applicants), that when the Site is being
used by one of the parties to the loan, that
they are permitted to act on behalf of the
Joint Applicants.
(f) The Client acknowledges that the
Provider is not liable for any loss or
liability arising from clause 4.2(c)-(f).
4.3 Payment
(a) The Client must pay the Provider
if:
(1) A
Financial Product relating to the Services
is refinanced by a party other than the
Provider; or
(2) A commission relating to a
Financial Product is clawed-back; or
(3) You do not
proceed with the Services set out in the
Relevant Documents after executing it and
the Provider incurs costs as a result. These
costs include but are not limited to third
party fees and postage costs.
4.4 Assistance
The Client must provide all assistance (including information or documentation) which the Provider requests, to enable the Provider to comply with its obligations under this document or at law. The Client acknowledges that it may be held liable where it renders the Provider unable to provide services and the Provider incurs costs as a result.
4.5 Confidentiality
(a) Subject to clause 4.5(b), the
Client must (and must ensure that its
Personnel do):
(1) keep confidential; and
(2) not use or permit any
unauthorised use of,
all Confidential
Information.
(b) Clause 4.5(a)
does not apply where:
(1) the Client has the
prior written consent of the Provider;
(2) the
disclosure is required by law; or
(3) the
disclosure is to a professional adviser in
order to obtain advice in relation to
matters arising in connection with this
document and provided that the Client
ensures the adviser complies with the terms
of clause 4.5(a).
(c) To the
maximum extent permitted by law, the Client
indemnifies, and must continue to indemnify,
the Provider against all Liability it
suffers or incurs arising from or as a
consequence of a breach of this clause 4.5
by the Client.
4.6 Warranty
(a) The Client warrants that it has not
relied upon any warranty, representation,
statement, offer or documentation made or
provided by or on behalf of the Provider,
whether before or after the Effective Date.
(b) The Client acknowledges that by
executing the Relevant Documents that it is
representing that it complies with the
eligibility criteria at Clause 4.1.
4.7 Survival
This clause 4 will survive the termination or expiry of this document.
5 Intellectual Property
(a) As between the Parties, all
Intellectual Property developed, adapted,
modified or created by or on behalf of the
Provider or its Personnel (including in
connection with this document or the
provision of the Services), whether before
or after the Effective Date, will at all
times vest, or remain vested, in the
Provider.
(b) The Client must,
upon the Effective Date, grant the Provider
a perpetual, royalty-free, world-wide,
unconditional and irrevocable licence to
use, develop, adapt and modify (Use) all
Intellectual Property owned by, or licensed
to, the Client. The Client must ensure
that any such Use does not infringe any
Intellectual Property rights of any
person.
(c) If the
Client or any of its Personnel has any Moral
Rights in any material provided, used or
prepared in connection with this document,
the Client must (and must ensure that its
Personnel) consent to the use or
infringement of those Moral Rights.
(d) To the maximum extent permitted
by law, the Client indemnifies, and must
continue to indemnify, the Provider against
all Liability it suffers or incurs arising
from or as a consequence of a breach of this
clause 5 by the Client.
(e) This
clause 5 will survive the termination or
expiry of this document.
6 Limitations
(a) Despite anything to the contrary,
to the maximum extent permitted by law:
(1) the
Provider’s maximum aggregate Liability
arising from or in connection with this
document (including the Services and/or the
subject matter of this document) will be
limited to, and must not exceed, $100; and
(2) the Provider
will not be liable to the Client for any
loss of profit (including anticipated
profit), loss of benefit (including
anticipated benefit), loss of revenue, loss
of business, loss of goodwill, loss of
opportunity, loss of savings (including
anticipated savings), loss of reputation,
loss of use and/or loss or corruption of
data,
whether under statute, contract,
equity, tort (including negligence),
indemnity or otherwise.
(b) Despite anything to the contrary,
to the maximum extent permitted by law, the
Provider will have no Liability, and the
Client releases and discharges the Provider
from all Liability, arising from or in
connection with any:
(1) loss of, or damage to,
the Services (or any item used in the
provision of the Services), or any injury or
loss to any person;
(2) failure or delay in providing the
Services;
(3) delays in the provision of a loan
where such delays are mostly or wholly
attributable to a third party; or
(4) breach of
this document or any law,
where caused
or contributed to by any:
(5) event or circumstance
beyond the Provider’s reasonable control; or
(6) act or
omission of the Client or its Personnel.
(c) The Client acknowledges that
while all reasonable endeavours will be made
to ensure that the Site is accessible, the
Provider makes no representations or
warranties with regard to the uptime of the
Site.
(d) The Client acknowledges
that the Provider reserves the right to make
the Site inaccessible where reasonably
necessary for the purposes of system updates
or maintenance.
(e) The Client
agrees that, to the maximum extent permitted
by law, this document excludes all terms,
conditions and warranties implied by
statute, in fact or on any other basis,
except to the extent such terms, conditions
and warranties are fully expressed in this
document.
(f) This clause 6 will
survive the termination or expiry of this
document.
7 Trust provisions
(a) Each Party described in this
document as a trustee (Trustee) enters into
this document only in its capacity as a
trustee of the trust of which it is
described as the Trustee (Trust).
(b) Subject to clause 7(c), and
despite any other provision of this
document, a Liability arising under or in
connection with this document is limited and
can be enforced against a Trustee only to
the extent to which the Trustee is
indemnified out of the assets of the Trust.
(c) The limitation set out in clause
7(b) does not apply where the Trustee’s
right to indemnification is reduced or lost
as a result of fraud, breach of trust or
breach of duty by the Trustee.
(d) This clause 7 will survive the
termination or expiry of this document.
8 Dispute Resolution
(a) A Party must not commence
court proceedings relating to any dispute
arising from, or in connection with, this
document (Dispute) without first complying
with this clause 8 unless:
(1) that Party is seeking
urgent interlocutory relief; or
(2) the Dispute relates to
compliance with this clause.
(b) In the event of a Dispute, the
Party claiming there is a Dispute must give
written notice to the other Party setting
out the details of the Dispute and proposing
a resolution (Dispute Notice), either:
(1) to the email
address complaints@vow.com.au; or
(2) To the postal
address PO BOX H265, Australia Square NSW
1215.
(c) Within 45 Days after
receiving the Dispute Notice, the Parties
must, by their senior executives or senior
managers (who have the authority to reach a
resolution on behalf of the Party), meet at
least once to attempt to:
(1) resolve the Dispute;
or
(2) agree
on the method of resolving the Dispute by
other means,
in good faith. All
aspects of every such conference, except the
fact of the occurrence of the conference,
will be privileged.
(d) If the
Parties do not:
(1) resolve the Dispute; or
(2) (if the Dispute is not
resolved) agree on an alternate method to
resolve the Dispute,
within 50 Days
after receipt of the Dispute Notice, the
Dispute may be referred by either Party (by
notice in writing to the other Party) to
litigation.
(e) Notwithstanding
the existence of a Dispute, the Parties must
continue to perform their obligations under
this document.
(f) If the Client
is unhappy with the internal dispute
resolution process or outcome of the
Provider, it may refer the Dispute to the
Australian Financial Complaints Authority
(AFCA).
(1) The AFCA can be
contacted either:
(A) By telephone - 1800
931 678;
(B) By email – info@afca.org.au;
or
(C) By post – GPO BOX 3, Melbourne VIC
3001.
(g) This clause 8 will
survive the termination or expiry of this
document.
9 Termination
(a) This document will terminate
immediately if:
(1) mutually agreed in writing between
the Parties;
(2) any loan obtained by the Client is
paid in full;
(3) the Client enters into arrears or
defaults in relation to a Financial Product;
(4) the Client is
in breach of this document and that breach
has not been remedied within five Business
Days of being notified by the Provider;
(5) the Client is
subject to an Insolvency Event; or
(6) the Provider
is in breach of a material term of this
document and that breach has not been
remedied or overcome within 15 Business Days
of being notified by the Client.
(b) The Client may terminate this
document at any time by providing written
notice to the Provider.
(1) The Client
acknowledges its potential liability
pursuant to Clause 4.3, in relation to early
termination of these terms.
(c) The Provider reserves the right
to immediately terminate this document and
to cease providing Services to the Client at
its absolute discretion.
(d) The
Client acknowledges that termination of this
document pursuant to Clause 9(a) - (c) may
result in the termination of fees, rebates,
bonuses and other financial incentives from
being paid to the Client and acknowledges
that the Provider will not be held liable
for this.
(e) If the Client does
not claim a fee, rebate, bonus or other
incentive within a reasonable period of
time, it is at the Provider’s discretion to
no longer provide that fee, rebate, bonus or
incentive.
(f) Termination of this
document will not affect any rights or
liabilities which a Party has accrued under
it.
(g) Upon termination of this
document, the Client agrees that it will
(and will ensure that its Personnel):
(1) not disparage
or otherwise make any unfavourable
statements or comments regarding the
Provider or its Personnel, either directly
or by implication, verbally or in writing;
(2) immediately
return to the Provider all property,
including Confidential Information and
Intellectual Property belonging to the
Provider or its Personnel, in its or its
Personnel’s possession; and
(3) not use any
Intellectual Property belonging to the
Provider or its Personnel.
This clause
9(g) will survive the termination or expiry
of this document.
10 General
10.1 Representations
The Client represents and warrants to the
Provider:
(a) it has full legal
capacity and power to enter into this
document, to perform its obligations under
this document, to carry out the transactions
contemplated by this document, to own its
property and assets and to carry on its
business;
(b) no Insolvency Event
has occurred in respect of it;
(c) this document constitutes legal,
valid and binding obligations, enforceable
in accordance with its terms; and
(d) the execution and performance by
it of this document and each transaction
contemplated by it does not conflict with
any law, order, judgment, rule or regulation
applicable to it or any instrument binding
on it.
10.2 Notices
(a) A notice or other communication
given under this document must be:
(1) in writing,
in English and signed by the sender; and
(2) addressed and
delivered to the intended recipient by hand,
prepaid post or email in accordance with the
notice details in the Relevant Documents.
(b) A Party’s notice details are set
out in the Relevant Documents. A Party
may change its notice details by written
notice to the other Parties.
(c) A notice or communication is
taken as having been given:
(1) when left at a Party’s
current address for notices;
(2) if mailed, on the
third Business Day after posting (if
delivered to an address within the same
country) or on the tenth Business Day after
posting (if delivered to an address within
another country); or
(3) if sent by email, if
sent before 5pm on a Business Day in the
place of receipt then on the Business Day
when it is sent, otherwise on the following
Business Day.
10.3 Waiver
Any failure or delay by a Party in exercising a power or right (either wholly or partially) in relation to this document does not operate as a waiver or prevent that Party from exercising that power or right or any other power or right. A waiver must be in writing.
10.4 Referrals and Initial Commission
(a) The Client may refer a third party
to the Provider for provision of Services
and seek additional Commission Rebate using
the Site, if the third party has received
Services from the Provider (that result in a
loan being settled) as a result of the
referral. The details of the Commission
Rebate will be listed on the Site. The
Client acknowledges that the Provider
reserves the right to alter or cease
offering a Commission Rebate at any time.
The Client acknowledges that eligibility for
a Commission Rebate is at the absolute
discretion of the Provider.
(b) The Provider may offer the client
a share of any applicable commissions or
rebates for a Financial Product, once
settlement has occurred.
(c) The
amount that may be provided to the Client is
at the absolute discretion of the Provider.
(d) In order to claim the Commission
Rebate referred to at Clause 10.4(a) &
(b), the Client must make a claim using the
Provider’s Site.
(e) The Client
acknowledges that it is responsible for
entering the correct bank details that the
Provider is to pay any Commission Rebate
into, and the Provider will not be held
liable in relation to incorrect information
supplied by the Client.