Terms and Conditions

1 Definitions and Interpretation

1.1 Definitions
 
In this document, unless the context otherwise requires, capitalised terms have the meaning given to them in the Relevant Documents, and:
Business Day means a day on which banks are open for general banking business in New South Wales, excluding Saturdays, Sundays and public holidays.
 
CIO means the Credit and Investments Ombudsman.
 
Client means the party named as ‘client’ in the Relevant Documents.
 
Confidential Information includes information or documentation which:
(a) is disclosed to the Client in connection with this document (whether before or after the Effective Date);
(b) is prepared or produced under or in connection with this document (whether before or after the Effective Date); or
(c) relates to:
     (1) the business, assets or affairs of the Provider; or
     (2) the subject matter of, the terms of and/or any transactions contemplated by this document,
whether or not such information or documentation is reduced to a tangible form or marked in writing as “confidential”, and whether it is disclosed to the Client or received, acquired, overheard or learnt by the Client in any way whatsoever.
 
Corporations Act means the Corporations Act 2001 (Cth).
 
Defect has the meaning given in clause 3.4(a).
 
Dispute has the meaning given in clause 8(a).
 
Dispute Notice has the meaning given in clause 8(b).
 
Effective Date means the earlier of the date on which either:
(a) the Relevant Documents are executed by the parties;
(b) the Client commences using the Services; or
(c) otherwise accepted in accordance with its terms.
 
Financial Product means a facility that either makes a financial investment, manages financial risk or makes non-cash payments.
 
Force Majeure has the meaning given in clause 10.13.
 
Insolvency Event means the occurrence of any one or more of the following events in relation to the Client:
(a) it is or states that it is insolvent or is deemed or presumed to be insolvent under any applicable laws;
(b) an application or order is made for its winding up, bankruptcy or dissolution or a resolution is passed or any steps are taken to pass a resolution for its winding up or dissolution;
(c) an administrator, provisional liquidator, liquidator or person having a similar or analogous function under the laws of any relevant jurisdiction is appointed in respect of it or any action is taken to appoint any such person and the action is not stayed, withdrawn or dismissed within 10 Business Days;
(d) a controller is appointed in respect of any of its property;
(e) it is deregistered under the Corporations Act or other legislation or notice of its proposed deregistration is given to it;
(f) a distress, attachment or execution is levied or becomes enforceable against it or any of its property;
(g) it enters into or takes action to enter into an arrangement, composition or compromise with, or assignment for the benefit of, all or any class of its creditors or members or a moratorium involving any of them;
(h) a receiver or manager (or both) or trustee in bankruptcy is appointed in respect of it or its property;
(i) a petition for the making of a sequestration order against its estate is presented and the petition is not stayed, withdrawn or dismissed within 10 Business Days or it presents a petition against itself; or
(j) anything analogous to or of a similar effect to anything described above under the law of any relevant jurisdiction occurs in respect of the Client.
 
Intellectual Property means any:
(a) copyright;
(b) registered or unregistered design, patent or trade mark rights;
(c) trade, business, company or domain names;
(d) know-how, inventions, processes, trade secrets or Confidential Information;
(e) circuit layouts, databases or source codes; or
(f) similar rights in any part of the world,
including any application, or right to apply, for registration of, and any improvements, enhancements or modifications of, the foregoing.
 
Joint Applicants has the meaning given to it at Clause 4.2(e).
 
Liability means any expense, cost, liability, loss, damage, claim, demand or proceeding (whether under statute, contract, equity, tort (including negligence), indemnity or otherwise), howsoever arising, whether direct or indirect and/or whether present, unascertained, future or contingent.
 
Moral Rights has the meaning given in the Copyright Act 1968 (Cth).
 
Party means a party to this document, and Parties means all of them.
 
Personnel means, in respect of a Party, any of its employees, consultants, suppliers, subcontractors or agents.
 
Privacy Policy means the privacy policy available at the Site.
 
Provider means Xin Mortgage Pty Ltd.
 
Relevant Documents means:
(a) A fact finder form;
(b) Privacy consent form; and
(c) Credit proposal (or any combination of the above).
 
Services means assistance with selecting, obtaining Financial Products, including post-settlement.
 
Site means the website at https://www.xin.com.au/
 
Third Party Inputs has the meaning given in clause 3.3(a)(1).
 
Trust has the meaning given in clause 7(a).
 
Trustee has the meaning given in clause 7(a).
 
Use has the meaning given in clause 5(b).

1.2 Interpretation

In this document, unless the context otherwise requires:
(a) the singular includes the plural and vice versa;
(b) headings are for convenience only and do not affect interpretation;
(c) a reference to a clause, paragraph, schedule or annexure is a reference to a clause, paragraph, schedule or annexure, as the case may be, of this document;
(d) if any act which must be done under this document is to be done on a day that is not a Business Day then the act must be done on or by the next Business Day;
(e) a reference to any legislation or law includes subordinate legislation or law and all amendments, consolidations, replacements or re-enactments from time to time;
(f) where a word or phrase is defined, its other grammatical forms have a corresponding meaning;
(g) a reference to a natural person includes a body corporate, partnership, joint venture, association, government or statutory body or authority or other legal entity and vice versa;
(h) includes and similar words mean includes without limitation;
(i) no clause will be interpreted to the disadvantage of a Party merely because that Party drafted the clause or would otherwise benefit from it;
(j) a reference to a party to an instrument includes that party’s executors, administrators, successors, permitted assigns and persons substituted by novation from time to time;
(k) a reference to this document or any other instrument includes the instrument, all schedules and all annexures as novated, amended, supplemented, varied or replaced from time to time;
(l) a reference to a covenant, obligation or agreement of two or more persons binds or benefits them severally;
(m) a reference to time is to local time in New South Wales, Australia; and
(n) a reference to $ or dollars refers to the currency of Australia from time to time.

2 Commencement

(a) This document takes effect on and from the Effective Date.  No cancellations by the Client will be accepted by the Provider after the Effective Date, other than in accordance with clause 9.
(b) The Provider will proceed with the provision of the Services within a reasonable time after the later of the Effective Date or the satisfaction of any other conditions precedent contemplated by this document.

3 Provider’s obligations

3.1  Services

(a) In consideration of the Client executing the Relevant Documents, the Provider will provide the Services in accordance with this document, whether itself or by using its Personnel.
(b) If this document expresses a time within which the Services are to be provided, the Client acknowledges and agrees that any such time is an estimate only and creates no obligation on the Provider to provide the Services by that time.
(c) Despite anything to the contrary, to the maximum extent permitted by law, the Provider will not be responsible, and will have no Liability, for any works, services or items which:
     (1) do not form part of the Services, as expressed in the Relevant Documents; or
     (2) have not been provided by the Provider.
This clause 3.1(c) will survive the termination or expiry of this document. 

3.2 Variations

(a) Subject to clause 3.2(b), the Client may request a variation or change to the Services, by providing written notice to the Provider, with details of the variation or change.
(b) Despite anything to the contrary, the Provider will not be obliged to vary or change the Services, including the timing for the provision of the Services, unless the Provider confirms that it accepts the variation or change.

3.3 Third parties

(a) The Client acknowledges and agrees that:
     (1) the provision of the Services may be contingent on, or impacted by, third parties(Third Party Inputs); and
     (2) despite anything to the contrary, to the maximum extent permitted by law, the Provider will not be responsible, and will have no Liability, for any default or breach of this document or law, if such default or breach was caused or contributed to by any Third Party Inputs.
(b) This clause 3.3 will survive the termination or expiry of this document. 

3.4 Defects

(a) If and only if, within 24 hours after the completion of the Services, the Client has notified the Provider in writing of any fault, defect or error in the Services, which is caused by a breach of this document by the Provider (Defect), along with a description of the relevant Defect, the Provider will, at its own cost
remedy the Defect.
(b) Despite anything to the contrary, to the maximum extent permitted by law, the Provider’s aggregate Liability for any fault, defect, error, omission or lack of functionality or suitability with respect to the Services will be limited to, and must not exceed $100.00. This clause 3.4 will survive the termination or expiry of this document.

4 Client’s obligations

4.1 Eligibility

The Client acknowledges that it is not eligible for the Provider’s Services unless the Client is 18 years of age or older (if a natural person).

4.2 General

(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 cash 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 cash rebate will be listed on the Site. The Client acknowledges that the Provider reserves the right to alter or cease offering a cash rebate at any time. The Client acknowledges that eligibility for a cash 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 cash 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 cash rebate into, and the Provider will not be held liable in relation to incorrect information supplied by the Client.

10.5 Powers, rights and remedies

Except as provided in this document or permitted by law, the powers, rights and remedies of a Party under this document are cumulative and in addition to any other powers, rights and remedies the Party may have.

10.6 Consents or approvals

Except as provided in this document, a Party may give, attach conditions to or withhold any consent or approval under this document in its sole and absolute discretion.  A Party is not obliged to give reasons for giving or withholding its consent or approval or for giving its consent or approval subject to conditions.

10.7 Assignment

The Client may not assign, transfer or otherwise deal with all or any of its rights or obligations under this document without the prior written consent of the Provider.  Any purported dealing in breach of this clause 10.8 is of no force or effect. 

10.8 Further assurance

Each Party must promptly do all things and execute all further instruments necessary to give full force and effect to this document and their obligations under it.

10.9 Costs and expenses

Each Party must pay its own costs and expenses (including legal costs) in connection with the negotiation, preparation and execution of this document and any instrument relating to it.

10.10 Relationship of Parties

This document is not intended to create a partnership, joint venture or agency relationship between the Parties.  Nothing in this document gives a Party authority to bind any other Party in any way.

10.11 Independent legal advice

Each Party acknowledges and agrees that it has had an opportunity to read this document, it agrees to its terms and, prior to executing it, it has been provided with the opportunity to seek independent legal advice about its terms. 

10.12 Force Majeure

If performance of this document or any obligation under this document is prevented, restricted, or interfered with by causes beyond either party’s reasonable control (Force Majeure), and if the party unable to carry out its obligations gives the other party prompt written notice of such event, then the obligations of the party invoking this provision shall be suspended to the extent necessary by such event.  The term Force Majeure shall include, without limitation, acts of God, fire, explosion, vandalism, storm or other similar occurrence, orders of acts of military or civil authority, or by national emergencies, insurrections, riots, or wars, or strikes, lock-outs, work stoppages. The excused party shall use reasonable efforts under the circumstances to avoid or remove such causes of non-performance and shall proceed to perform with reasonable dispatch whenever such causes are removed or ceased.  An act or omission shall be deemed within the reasonable control of a party if committed, omitted, or caused by such party, or its employees, officers, agents, or affiliates.

10.13 Severance

(a) If a provision of this document is held to be void, invalid, illegal or unenforceable, that provision must be read down as narrowly as necessary to allow it to be valid or enforceable.
(b) If it is not possible to read down a provision (in whole or in part), that provision (or that part of that provision) is severed from this document without affecting the validity or enforceability of the remainder of that provision or the other provisions in this document.

10.14 Entire agreement

This document contains the entire understanding between the Parties, and supersedes all previous discussions, communications, negotiations, understandings, representations, warranties, commitments and agreements, in respect of its subject matter. 

10.15 Amendment

This document may only be amended by written instrument executed by all Parties.

10.16 Counterparts

This document may be executed in any number of counterparts that together will form one instrument.

10.17 Governing law and jurisdiction

This document is governed by the laws of New South Wales.  Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts operating in New South Wales and any courts entitled to hear appeals from those courts and waives any right to object to proceedings being brought in those courts.
 
 

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North Sydney NSW 2060 , Australia
Phone: 1800 896 817
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XIN Mortgage Pty Ltd ABN 52 603 640 786 is a Credit Representative of Vow Financial Pty Ltd ABN 66 138 789 161, Australian Credit Licence 390261, Level 11, 1 Chifley Square, Sydney NSW 2000.