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1. Binding terms and conditions

1.1 Terms and conditions

The only terms which are binding upon LMG are:

  1. those set out in these terms and conditions or otherwise agreed to in writing by; and
  2. those, if any, which are imposed by law and which cannot be excluded.

1.2 Special Conditions

These terms and conditions are to be read subject to any special conditions specified in the Reference Schedule which apply to the extent of any inconsistency. 

2. Services

2.1 Provision of Services

  1. LMG will supply the Services specified in the Reference Schedule to the Referrer on the terms of this Agreement.
  2. The Referrer acknowledges that LMG is not obliged to provide the Referrer with access to any Broker Partners.

2.2 Third-Party Service Providers

  1. If LMG relies on a Third Party Service Provider to provide the Services, or assist in providing the Services, LMG’s obligation to provide the Services is conditional on the Third Party Service Provider fulfilling its obligations.
  2. If the Third Party Service Provider does not fulfil its obligations for any reason, LMG may immediately suspend the provision of all or part of the Services by written notice to the Referrer.

2.3 Variations

LMG may, at its absolute discretion, vary the scope of what is provided as part of the Services as it deems reasonably appropriate. Any variations will take effect upon LMG giving the Referrer 30 days’ written notice. 

2.4 Suspension

LMG may suspend the Services at any time that the Referrer is in breach of this Agreement.  

3. Access and usage

3.1 The Referrer must:

  1. only access and use the Asset Finance Exchange in accordance with this Agreement; 
  2. promptly notify LMG of any errors that occur with the Asset Finance Exchange; 
  3. comply with all reasonable directions of LMG in relation to the use of the Asset Finance Exchange; and
  4. not permit, allow or facilitate any third party to use or access the Asset Finance Exchange or access any data or information contained or stored in the Asset Finance Exchange.

3.2 Except as expressly permitted under this Agreement, the Referrer must not, and must not allow any other person to:

  1. share its login details for the Asset Finance Exchange with any third party; 
  2. modify, copy, create, or derivate works based on the Asset Finance Exchange or reproduce the Asset Finance Exchange or any documentation provided by LMG in relation to the use and operation of the Asset Finance Exchange or reverse engineer the Asset Finance Exchange (except to the extent permitted by non-excludable laws); 
  3. attempt to gain unauthorised access to, or disrupt or bypass the security, integrity or performance of, the Asset Finance Exchange or any data contained in it; 
  4. send or store unlawful material (including viruses) by means of the Asset Finance Exchange; or
  5. modify or alter the Asset Finance Exchange or merge all or any part of the Asset Finance Exchange with any other software, except as authorised by LMG.

3.3 During the Term:

  1. LMG may make changes to the Asset Finance Exchange from time to time, provided that the change does not materially decrease the functionality of the Asset Finance Exchange.  Once incorporated, these changes will form part of the Asset Finance Exchange; and
  2. the Referrer acknowledges that some updates may incorporate features, functionalities and changes that may not be compatible with the customisation, configuration or interfaces implemented for the Referrer.  The Referrer is responsible for making changes (at its cost) to its customisation, configuration or interfaces to retain compatibility.

3.4 The Referrer acknowledges that any access to or use of the Asset Finance Exchange by means of access credentials assigned to a Referrer’s user (whether or not such use is in fact by that person) is deemed to be access or use by the Referrer, except to the extent that such unauthorised use is by LMG’s personnel.

3.5 LMG has taken due care in providing and operating the Asset Finance Exchange, however to the extent permitted by law, LMG does not warrant, and excludes all representations and warranties that:

  1. the Asset Finance Exchange is error-free or has no defects; 
  2. access to the Asset Finance Exchange will be uninterrupted or error free; or
  3. the Asset Finance Exchange is free from viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs. 

3.6 To the maximum extent permitted by law the Loan Market Group is not liable to the Referrer, a Customer or any other person for any loss or damage arising out of or in connection with:

  1. any person gaining unauthorised access to the Asset Finance Exchange;
  2. any malfunction, bugs or viruses in the Asset Finance Exchange;
  3. use or disclosure of any data obtained by any third party as a result of the unauthorised access to the Asset Finance Exchange;
  4. defects in or the unsuitability of the Asset Finance Exchange;
  5. the unavailability of the Asset Finance Exchange;
  6. the Referrer’s inability to access or use the Asset Finance Exchange; or
  7. any delay in the receipt of any data transmitted using the Asset Finance Exchange.

3.7 LMG may suspend the access to, and use of, the Asset Finance Exchange by the Referrer and its users in the following circumstances:

  1. for any material breach of this Agreement by the Referrer; or
  2. if LMG reasonably considers that suspension is necessary to protect the Asset Finance Exchange, or any other computer systems and data (including in response to an external attack).

4. Termination

4.1 Termination on notice

Either party may terminate this Agreement at any time by giving 14 days’ written notice to the other party, or on such other terms as may be agreed by the parties.

4.2 Default and Termination 

4.3 A party (other than the Defaulting Party) may terminate this Agreement at any time by written notice to the other party if any of the following apply:

  1. a party (Defaulting Party) fails to carry out any provision of this Agreement, the failure is capable of remedy and the Defaulting Party does not remedy that failure within 7 days after written notice to the Defaulting Party requiring it to be remedied; or
  2. the Defaulting Party fails to carry out any material provision of this Agreement and the failure is not capable of remedy.

4.4 Effect of Termination 

Termination does not affect any claim either party may have against the other arising out of the terms of this Agreement at the date of the termination.

5. Exclusions and limitations

5.1 Exclusions of conditions and warranties

  1. To the fullest extent permitted by any law, all conditions and warranties implied by law arising out of the supply of the Services by LMG, are excluded.
  2. LMG does not limit or exclude the application of any provision of any statute (including the Competition and Consumer Act 2010 (Cth) or any similar law) where to do so would contravene that statute or cause any part of this clause to be void.

5.2 Limitation on liability

To the extent permitted by statute the liability, if any, of LMG arising from the breach of the conditions or warranties referred to in clause 5.1(2) is limited to and completely discharged in the case of advice, recommendations, information or Services, by supplying the advice, recommendations, information or Services again.

5.3 Exclusion of consequential loss

Subject to law, neither party has any liability (including liability in negligence) to the other for any indirect or consequential loss (including loss of profits, loss of revenue or loss of reputation) or any damage which does not flow naturally and in the ordinary course of things from the breach.

6. Indemnity

6.1 The Referrer indemnifies LMG, against:

  1. all losses incurred by LMG;
  2. all liabilities incurred by LMG; and
  3. all costs actually payable by LMG to its own legal representatives (whether or not under a costs agreement) and other expenses incurred by LMG in connection with a demand, action, arbitration or other proceeding (including mediation, compromise, out of court settlement or appeal);

arising directly or indirectly as a result of or in connection with:

  1. any breach of the Referral Agreement by the Referrer; 
  2. the Referrer’s use of the Services.

6.2 The indemnity in clause 6.1 does not apply to the extent the liability, cost or expense was caused or contributed to by LMG’s negligence or wilful misconduct.

6.3 The Referrer must pay to LMG all liabilities, costs and other expenses referred to in clause 6.1, whether or not LMG has paid or satisfied them, except for any liabilities, costs and other expenses caused or contributed to by LMG’s negligence or wilful misconduct on the part of any of its employees or agents acting within the scope of their authority.

7. General

7.1 Force majeure

If a party is prevented from or delayed in complying with an obligation (other than to pay money) by an event beyond its reasonable control, performance by it of that obligation is suspended during the time, but only to the extent that, compliance is prevented or delayed.

7.2 Entire understanding

  1. These terms and conditions:
    (a) are the entire agreement and understanding between LMG and the Referrer on everything connected with the subject matter of these terms and conditions; and
    (b) supersede any prior agreement or understanding on anything connected with that subject matter.
  2. LMG and the Referrer have entered into these terms and conditions without relying on any representation by the other or any person purporting to represent the other.

7.3 Waiver

  1. A party’s failure or delay to exercise a power or right does not operate as a waiver of that power or right. 
  2. The exercise of a power or right does not preclude either its exercise in the future or the exercise of any other power or right.
  3. A waiver is not effective unless it is in writing.
  4. Waiver of a power or right is effective only in respect of the specific instance to which it relates and for the specific purpose for which it is given.

7.4 Notices 

  1. A notice or other communication connected with this Agreement (Notice) has no legal effect unless it is in writing.
  2. In addition to any other method of service provided by law, the Notice may be:
    (a) sent by prepaid priority post to the address of the addressee set out in this Agreement or subsequently notified;
    (b) sent by email to the email address of the addressee notified by the addressee on or about the date of this Agreement, or subsequently; or
    (c) delivered at the address of the addressee set out in this Agreement or subsequently notified.
  3. The method of service is at the election of the party giving notice.
  4. If the Notice is sent or delivered in a manner provided by clause 7.4(2), it must be treated as given to and received by the party to which it is addressed:
    (a) if sent by post, on the 3rd Business Day (at the address to which it is posted) after posting;
    (b) if sent by email before 5pm on a Business Day at the place of receipt, on the day it is sent and otherwise on the next Business Day at the place of receipt; or
    (c) if otherwise delivered before 5pm on a Business Day at the place of delivery, upon delivery, and otherwise on the next Business Day at the place of delivery.

7.5 Survival

Each obligation, which expressly survives or is capable of surviving the termination of this Agreement continues in force despite the termination of this Agreement.

7.6 Counterparts

This Agreement may be executed in any number of counterparts. Each counterpart is an original but the counterparts together are one and the same agreement. This Agreement is binding on the parties on the exchange of executed counterparts.

7.7 Assignment

  1. LMG may transfer all or any part of its rights, interests, obligations or liabilities under this Agreement by assignment or by novation without prior notice to the Referrer.  If LMG elects to do so, the Referrer must upon request by LMG execute any deed, agreement or notice of assignment acknowledging and agreeing to such assignment by LMG, or an agreement or deed of novation (in a form prepared by LMG), substituting a third party in LMG’s place under this Agreement.  
  2. This Agreement is personal to the Referrer and the Referrer must not assign this Agreement or any part of its obligations under this Agreement without LMG’s prior written consent.

7.8 Governing law and jurisdiction

  1. The law of the State of Queensland governs these terms and conditions.
  2. The parties submit to the non-exclusive jurisdiction of the courts of the State of Queensland and of the Commonwealth of Australia

8. Confidential Information

8.1 Definition of Confidential Information 

  1. In this clause 8 Confidential Information means
    (a) all business and financial information relating to LMG;
    (b) all trade secrets, processes, procedures, marketing strategies, market research, information concerning product development, know how, systems, computer programs, models, databases, any modifications to such things and all other information which, by its nature places or potentially places LMG at an advantage over its present or future business competitors; and
    (c) any information of LMG which is marked “confidential” or would at law be considered secret or confidential information of LMG.

8.2 Protection of Confidential Information

  1. The Referrer acknowledges that the Confidential Information is proprietary, confidential or a trade secret of LMG.
  2. The Referrer must not and must not permit any of their personnel or Related Bodies Corporate to, use or to disclose the Confidential Information to any person without the prior written consent of LMG.  The Referrer must return any Confidential Information to LMG on request, or otherwise at the end of this Agreement.
  3. This clause 8 survives the end of this Agreement.

9. Definitions and interpretation

9.1 Definitions

In these terms and conditions:

  1. Agreement means these terms and conditions together with the Reference Schedule as amended by LMG from time to time; 
  2. Asset Finance Exchange means the integrated loan and referral platform owned and maintained by LMG;
  3. Broker Partner means an asset finance broker that has entered into a referral agreement with the Referrer under which the Referrer may refer leads through the Asset Finance Exchange; 
  4. Business Day means a day that is not a Saturday, Sunday, public holiday or a bank holiday in the place where an act is to be performed or a payment is to be made;
  5. Commencement Date means the date specified in Item 3 of the Reference Schedule;
  6. GST means GST as defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth);
  7. Loan Market Group means LMG and its Related Entities;
  8. Referral Agreement means a referral agreement entered into between the Referrer and relevant Broker Partner;
  9. Reference Schedule means the reference schedule of this Agreement; 
  10. Related Entity has the meaning given in section 9 of the Corporations Act 2001 (Cth);
  11. Services mean the Services which may be provided by LMG to the Referrer as set out in Item 4 of the Reference Schedule or as otherwise agreed by the parties from time to time;
  12. Special Conditions mean the special conditions set out in Item 5 in the Reference Schedule; 
  13. Term means the term of this Agreement, commencing on the Commencement Date and continuing until terminated in accordance with this Agreement; and
  14. Third Party Service Provider means any entity that is not a Related Entity of LMG that provides specialised services.

9.2 Interpretation

  1. Reference to:
    (a) one gender includes the others;
    (b) the singular includes the plural and the plural includes the singular;
    (c) a person includes a body corporate;
    (d) a party includes the party’s executors, administrators, successors and permitted assigns;
    (e) a statute, regulation or provision of a statute or regulation (Statutory Provision) includes:
    (I) that Statutory Provision as amended or re-enacted from time to time; and
    (ii) a statute, regulation or provision enacted in replacement of that Statutory Provision; and
  2. money is to Australian dollars, unless otherwise stated.
  3. “Including” and similar expressions are not words of limitation.
  4. Where a word or expression is given a particular meaning, other parts of speech and grammatical forms of that word or expression have a corresponding meaning.
  5. Headings and any table of contents or index are for convenience only and do not form part of this document or affect its interpretation.
  6. A provision of this document must not be construed to the disadvantage of a party merely because that party was responsible for the preparation of this document or the inclusion of the provision in this document.
  7. If an act must be done on a specified day which is not a business day, it must be done instead on the next Business Day.