Client Agreement

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Client Agreement

1. Interpretation

1.1 Whenever used in this Agreement, unless inconsistent with the subject matter or context, the following words shall have the following meanings:

“Agreement” means these general terms and conditions, together with all schedules, attachments or other documents attached or referred to.

“App” means the mobile application called “Bizmoto” through which we provide our services to you.

“Authorities” includes any judicial, administrative, public or regulatory body, any government, any Tax Authority, court, central bank or law enforcement body, or any of their agents with jurisdiction over us.

“Cut-Off Time” means the time for the destination country of a payment by which cleared funds need to be received by us in order for that payment to be made on any Day.

“Day” means a day on which commercial banks are open for business (including dealings in foreign exchange) in Perth Western Australia.

“Force Majeure” means events or causes including, but not limited to, the following: an act of God, war (whether declared or not), sabotage, riot, insurrection, civil commotion, national emergency (whether in fact or law), martial law, fire, flood, cyclone, earthquake, landslide, explosion, power or water shortage, failure of a transmission or communication network, epidemic, quarantine, strike or other labour difficulty or expropriation, restriction, prohibition, law, regulation, decree or other legally enforceable order of a government agency, breakage or accident, change of International, State or Commonwealth law or regulation or any damage of our machinery or systems, unless occurring as a result of an act, omission, default or negligence of you or us.

“Instruction” means any request given by you to us (or one of our agents) in relation to the provision by us of the service of converting your money into foreign currency and sending it to your designated Receiver.

“Law” means any local or foreign law, regulation or judgment, court order or sanctions regimes which we are subject to.

“Order” means the agreement entered into between you and us under which we will provide the service of converting your money into foreign currency and sending it to your designated Receiver in accordance with your Instructions.

“Personal Information” is as defined in the Privacy Act 1988 (Cth) as it may vary from time to time.

“Receiver” means the person to whom you instruct us to make payment.

“Tax Authority” means Australian or foreign tax, revenue or monetary authorities (e.g. the ATO).

“We, us, our” means Peppermint Payments Pty Ltd (ACN 615 836 916), its subsidiaries, holding companies, successors and/or assigns, as well as its officers, directors, employees and agents.

“Website” means the website at bizmoto.com.au through which we provide our services to you.

“You, your, yours” means the person identified in the customer application form.

1.2 If you is comprised of two or more legal persons then a reference to your rights or obligations under this Agreement or under a transaction contemplated by this Agreement confers each right or imposes each obligation, as the case may be, jointly and severally on those persons.

2. This Agreement

2.1 This is a master agreement and sets out the terms and conditions upon which any future contracts between you and us will be conducted, relating to the provision of advice or the execution of Orders.

2.2 This Agreement is in addition to other documents that may have been exchanged and/or executed between the parties.

2.3 The terms of this Agreement and any transactions under it, may be amended by us at any time. We will provide notice to you of any such amendment. You agree to be bound by the terms of such an amendment on the earlier of:

(a) 10 Days after we have posted notice of the amendment on the Website; or

(b) the date of your providing any Instructions after the amendment.

Any other amendments must be agreed to in writing between you and us.

2.4 At no time shall either party enter into commitments for or in the name of the other party or use or reverse engineer their intellectual property for any purpose whatsoever. Except as specifically provided for in this Agreement, neither party will:

(a) use the other party’s name or intellectual property without the prior written approval of the other party; or

(b) represent itself as being affiliated with, or authorised to act for, the other party.

3. Client status

3.1 You warrant to us that:

(a) in the case of an individual or more than one individual, you are of full age and capacity;

(b) in the case of a firm or corporation, it is duly constituted and incorporated and possesses the requisite power to enter into this Agreement and all contracts made or to be made; and

(c) in any case, this Agreement and such contracts are and will constitute legally binding and enforceable obligations on you.

3.2 If you enter into this Agreement as a trustee of a trust:

(a) the trust has been duly constituted, is valid and complies with all applicable laws;

(b) the trust deed has been executed and stamped, in accordance with the laws of the relevant State or Territory of Australia;

(c) you are the only trustee of the trust;

(d) the property of the trust has not been resettled, set aside or transferred to any other trust or settlement and the trust deed has not been terminated and the date or any event for the vesting of the trust’s property has not occurred;

(e) all obligations under, and transactions contemplated by, this Agreement constitute binding obligations and are lawfully enforceable against the trust and its property in accordance with their terms;

(f) you have an unrestricted right to be fully indemnified or exonerated out of the trust’s property in respect of any losses or liabilities incurred by it in its dealings with us, and the trust’s property is sufficient to satisfy that right of indemnity or exoneration;

(g) you have complied with your obligations in connection with the trust;

(h) there is no conflict of interest on your part in entering into this Agreement and performing your obligations under it or the transactions contemplated by it.

4. Client representations and warranties

4.1 You represent and warrant to us that:

(a) your execution and delivery of this Agreement, and performance of all of your obligations contemplated under this Agreement, does not violate any Law applicable to you;

(b) payment of money to the Receiver under an Order will not breach any Law;

(c) all information provided by you to us is true, correct and complete, and you will notify us promptly of any changes to such information;

(d) you shall make ongoing disclosure to us of any matters that may affect the operation of this Agreement or of your ability to remain solvent.

4.2 You acknowledge and agree that:

(a) we have not made any recommendation or statement of opinion regarding the suitability of our service to your needs, and we have not assessed your needs prior to offering you our services;

(b) we will enter into the transactions contemplated by this Agreement in reliance on the representations and warranties made by you.

4.3 You:

(a) confirm that you have regular access to the internet;

(b) consent to our contacting you (in the circumstances described in this Agreement) by email on the address provided by you;

(c) agree to ensure that your contact details are up to date at all times.

5. Transacting with us

5.1 Rate indications are available by telephone, email, email chat, face to face, or through the App or the Website. Such indications are not binding and the rates will be as agreed in the Order.

5.2 You agree that you will provide Instructions by telephone, email, email chat, face-to-face or through the App or the Website. Instructions must be within our transaction limitations as set out from time to time on the App and the Website.

5.3 You agree that, by providing Instructions, you are making an offer to us to transact through our services, at a price quoted by us.

5.4 Our acceptance of the offer occurs when we conduct the transaction in accordance with your Instructions and issue a confirmation notice for the Order.

5.5 Once we have issued you with a confirmation notice, you have 2 hours to tell us if the information contained on the confirmation notice is incorrect.

5.6 We retain the authority to refuse to act on your Instructions without providing any reason to you for doing so.

 

6. Payment

6.1 We only accept payment by you in the form of electronic deposit into one of our Australian bank accounts.

6.2 Once we have received the money from you as cleared funds and confirmed the identity of the Receiver, we will transfer the money to the Receiver.

6.3 On your request, we will notify you when the Receiver collects the money.

6.4 We take no responsibility for the money after it has been transferred into the account specified by you.

6.5 Any request for payment to be made to the Receiver in a currency other than the local currency of the Receiver is subject to our consent.

 

7. Cancellation or alteration of an order

7.1 If, after an Order has been placed, you inform us that you wish to:

(a) cancel the Order – we may at our discretion either terminate the Order or insist on its performance; or

(b) alter the Order – we may at our discretion either alter the Order or insist on its performance.

7.2 We reserve the right to charge administration and cancellation fees in the event of the cancellation or alteration of an Order.

8. Delay

8.1 Although we will use all reasonable efforts to process your Order on the same Day that it is submitted to us we are not responsible or liable for the time it may take financial institutions to settle accounts.

8.2 We are only required to make an international payment under an Order on a particular Day if cleared funds have been received by us prior to the Cut-off Time for that Day from our bank. International payments relating to funds received by us after the Cut-off Time for a Day will be made on the next working Day.

8.3 If we are unable to perform our obligations under this Agreement because of factors beyond our control or because of a Force Majeure Event, we will notify you as soon as is reasonably practicable and will use reasonable endeavours to secure the return of any money paid by you in respect of which we have been unable to discharge our obligations under this Agreement.

9. Giving of Instructions

9.1 It is important that you take care when issuing any Instructions to us. You will be liable for all Instructions made when using any of our services including:

(a) instances of any misuse, fraud or abuse by you; or

(b) where a third party has gained access to your security details whether or not authorised by you.

9.2 We can delay, decline or reverse any Instruction if we reasonably:

(a) suspect that the transaction might be unlawful or might be associated with money laundering, terrorist financing, bribery, corruption, tax evasion, fraud, evasion of sanctions (economic or trade) or any acts or attempts to circumvent or break any Laws relating to the services provided under this Agreement; or

(b) believe that by carrying out the transaction we might breach our regulatory compliance obligations or if you are in breach of this Agreement.

Under such circumstances we will not be liable to you if we delay or refuse to carry out your Instruction.

10. Online transactions

10.1 By using the App or the Website to conduct transactions, you accept the following provisions of this clause 10.

10.2 Before being granted access, you will be asked to set up your security details.  Security details will include:

(a) a username;

(b) a password;

(c) any item of memorable information which we ask you to confirm; and

(d) any other security requirements we may notify to you from time to time.

10.3 You must change your security details if asked to do so by us at any time and for any reason. We reserve the right to change our security requirements without prior notice to you.

10.4 We may change the minimum specification required to access our services and also may make operational changes to and alter the services currently available at any time.  We will notify you of such changes by placing a message on the App or the Website or by emailing you.

10.5 You are responsible for obtaining, maintaining and ensuring compatibility with your equipment. We will not be responsible for any loss of or damage to your data, software, computer, telecommunications or other equipment caused by your use of any of our services, unless such loss or damage is directly and solely caused by our negligence or deliberate default.

10.6 You must not:

(a) misuse any of our services by knowingly introducing viruses, trojans, worms, logic bombs or other material which is malicious or technologically harmful;

(b) attempt to gain unauthorised access to any of our services or any server, computer or database connected to any of or services;

(c) attack any of our services via a denial-of-service attack or a distributed denial-of service attack.

We may report any breach to the relevant Authorities and we will co-operate with those Authorities by disclosing your identity to them.

10.7 For security purposes, when accessing any of our services it is a condition that we are satisfied of your identity. Accordingly we may be entitled not to act on your Instructions received or given through our service if we are in doubt as to your identity. You must take all reasonable precautions to keep safe and prevent fraudulent use of the services account you have enabled and any associated security details.

10.8 You must inform us immediately if you suspect or discover that someone else knows your security details or you believe that your security details may have been misused.

10.9 Whenever you use our services the use of your security details authorises us to act on any Instruction we receive. We will treat your use of your security details as your consent to conduct any Instructions you give using our services.

10.10 We can withdraw or suspend your security details with immediate effect if we believe that this is necessary to prevent suspected unauthorised or fraudulent use of any of our services or where there is a significantly increased risk that you will not be able to repay any money you owe us.

11. Deduction of fees

11.1 You agree to pay:

(a) an amount equal to any fee charged by us arising from any action taken pursuant to this Agreement;

(b) all taxes (including GST) and other expenses incurred by you in connection with this Agreement.

11.2 You authorise us to deduct fees, taxes and other expenses from the money you have paid us before we transfer the money to the Receiver.

11.3 In some circumstances a number of intermediaries may be involved in an international payment and may deduct fees or charges. The receiving bank may also take fees or charges. These charges cannot always be calculated in advance, and you agree that you will be liable for these fees or charges.

11.4 We will not be liable for any losses you may incur as a result of the fees or charges referred to in clause 11.3 being levied. We will use our best endeavours to ensure that all fees associated with a transaction are disclosed to you. However, due to the complexity of the international foreign exchange markets this may not always be possible.

11.5 You agree that we may at any time share our fees and charges with other persons without being required to disclose the sharing of such fees and charges to you, unless such disclosure is required by Law.

12. Anti-money laundering and privacy

12.1 You acknowledge that we will collect, hold, use and disclose Personal Information about you in accordance with our Privacy Policy, which can be found on the Website.

12.2 By agreeing to these terms and conditions, you consent to your Personal Information being disclosed to credit rating bodies to obtain your credit report for identity verification purposes. You acknowledge that if you do not agree to your Personal Information being used in this way then you will not be able to use our services.

12.3 Due to the inherent risks in transferring currency between parties located in different countries, we have adopted programs to ensure that it is not participating or assisting in money laundering or terrorist financing. Law enforcement agencies and regulatory Authorities may periodically inspect and require copies of client information and business records held by us, to ensure compliance with all applicable anti-money laundering and counter terrorism financing laws.

12.4 By agreeing to these terms, you acknowledge that you are fully aware that in appropriate cases all communications and information concerning your activities with us that we hold, may be disclosed to and reviewed by law enforcement agencies and regulatory Authorities.

12.5 You agree that you will comply with all applicable anti-money laundering and counter terrorism financing laws, including, but not limited to, the requirement to obtain satisfactory evidence of your identity.

13. Termination

13.1 This Agreement may be terminated immediately by either party by the giving of notice. However, termination by either party shall not:

(a) affect any other transaction previously entered into;

(b) affect the outstanding rights of either party in relation to this Agreement;

(c) relieve either party of any outstanding obligations arising out of this Agreement;

(d) relieve you of any obligations arising out of any transaction entered into prior to such termination.

13.2 In the event that we are made aware of, or given any reason to believe that you:

(a) have provided false or misleading information to us;

(b) have participated or are participating or have assisted or are assisting in money laundering or terrorist financing; or

(c) are being officially investigated by law enforcement and/or regulatory agencies,

then we may at our sole discretion terminate this Agreement immediately by notice to you, and we shall be relieved of any obligations set out in this Agreement or arising out of the transactions contemplated by this Agreement.

14. Limitation of liability

14.1 Should a quoting error occur due to a typographical error or obvious mistake in a quote, indication or Order, we:

(a) are not liable for any losses arising from the quoting error; and

(b) reserve the right to make the necessary adjustments to correct the quoting error.

Any dispute arising from a quoting error will be resolved on the basis of the fair market value, as determined by us acting reasonably, of the relevant currency at the time such quoting error occurred.

14.2 We will use all reasonable endeavours to make payments to the Receiver specified by you, in accordance with the timing specified in the Order. However, we shall not be liable under any circumstances for any losses incurred as a result of a delay in funds reaching the nominated account.

14.3 We will not be liable if a payee/beneficiary bank fails to process a payment correctly.

14.4 We will treat the payment or Receiver information provided by you as correct. We will not be liable to you for:

(a) the defective or non-execution of your payment;

(b) any delay in making your payment; or

(c) any charges or losses incurred by you,

if the information you provide or select is incorrect or where you have failed to confirm an Order.

14.5 Nothing in this Agreement is intended to limit or exclude any liability we may have to you under any statutory rights you may have.

15. Indemnity

15.1 You agree that you will hold us harmless from any and all liabilities, claims, costs, expenses and damages of any nature, including, but not limited to, reasonable legal fees and any fees and expenses incurred in connection with litigation, arising out of or relating to your negligence or wilful misconduct, the violation of any Law by you, or the breach by you of any provision of this Agreement.

15.2 You agree to promptly pay upon demand any and all damages, costs and expenses, including reasonable legal fees and expenses, incurred by us in the enforcement of any of the provisions of this Agreement.

 

16. Dispute resolution

16.1 The dispute resolution process set out in this clause 16 shall apply except to the extent that it is inconsistent with the requirements of any legislative or regulatory regime.

16.2 If you dispute that you have carried out a transaction using any of our services we will investigate and shall expect you to co-operate with us and relevant Authorities in any investigations.

16.3 The parties must use reasonable endeavours to resolve any dispute arising in connection with this Agreement or any transactions under it.

16.4 If the parties fail to resolve the dispute within 10 Days of the dispute being referred to them, the parties must, at the written request of either party and within 10 Days of receipt of the request, refer the dispute to mediation in accordance with, and subject to, the Institute of Arbitrators and Mediators Australia Rules for the Mediation of Commercial Disputes. The costs of the mediator shall be met equally by the parties. If the dispute or difference is not settled within 30 days of the submission to mediation (unless such period is extended by agreement of the parties), it shall be submitted to arbitration in accordance with, and subject to, the Institute of Arbitrators Australia Rules for the Conduct of Commercial Arbitrations.

16.5 This clause 16 does not limit your right (if applicable) to take any dispute to an external dispute resolution scheme of which we are a member.

17. General

17.1 This Agreement shall be governed by and construed in accordance with Australian Law. The parties agree to irrevocably submit to the non-exclusive jurisdiction of the Courts of Western Australia.

17.2 Any rights or obligations that you may have pursuant to this Agreement shall not be assigned, transferred, sold, or otherwise conveyed, except with our prior written consent.

17.3 You acknowledge that we may transfer any rights or obligations we may have pursuant to this Agreement to another party without your consent, and you will execute any documents (including a deed of novation) we may reasonably require to effect such a transfer.