Terms & Conditions
Lend Guard Pty Ltd ACN 644 262 742 of Level 3, 4-10 Bank Place, Melbourne VIC 3000 (“Lend Guard“)
The Customer, the details of which are provided in Schedule 1, Item 1 (“Customer“, “you“)
A. Lend Guard carries on a credit reporting business, as a credit reporting body and has the necessary knowledge, skill and expertise to provide credit reporting services to provide the Products to the Customer.
B. The Customer wants to make use of Lend Guard Products.
C. This Agreement sets out the terms and conditions on which the Customer will access and make use of Lend Guard Products.
It is agreed:
1. The following expressions have the meanings assigned to them by this clause 1:
a) “Act” means the Privacy Act 1988 (Cth), as amended or re-enacted from time to time;
b) “Affiliates” means, in respect of any Party, any other person which from time to time Controls, is Controlled by, or is under common Control with, that person, as such terms are defined in section 50AA of the Corporations Act 2001 (Cth);
c) “Agreement” means this agreement (as amended, replaced or restated from time to time), all referenced or attached Schedules, and any other document specifically incorporated into this Agreement by reference;
d) “Applicable Law” means any of the following, from time to time, to the extent it applies to credit reporting bodies, credit providers, Credit Reporting Information and the Parties in general:
i. Australian law including the Act, the Australian Privacy Principles and the CR Code;
ii. any binding court order, judgment or decree;
iii. any applicable industry code, policy or standard enforceable by law; or
iv. any applicable direction, policy or order that is given by a regulator or commissioner;
e) “Confidential Information” means all information that is
i. all confidential, non-public or proprietary information or know-how relating to the business, technology or other affairs of a party (including, for the avoidance of doubt, the terms of this agreement) regardless of how the information is stored or delivered, exchanged between the parties before, on or after the date of this agreement but does not include any Excluded Information;
ii. Personal Information as that term is defined in the Act or related information that either Party is obligated to treat as confidential;
iii. marked as confidential, disclosed in confidence or which by its nature or content is identifiable as confidential;
iv. including, but not necessarily limited to Credit Reporting Information, Lend Guard’s Data, Intellectual Property rights, all agreements to which the parties or the parties’ clients are a party to and information relating to those clients, customers, Products and facilities of Lend Guard;
f) “Consent” means any freely-given, express or implied, specific and adequately informed expression of will provided by an individual that has the capacity to understand and communicate their consent;
g) “Credit History” means an individual’s history in relation to consumer credit, including the individual’s consumer credit liability information and Repayment History Information;
h) “Credit Information” has the definition give to that term in section 6N in the Act which includes such information pertaining to an individual’s identification information, Credit History and Default Information;
i) “Credit Reporting Information” means Credit Information and CRB Derived Information;
j) “CRB Derived Information” means any Personal Information (other than sensitive information) about the Individual that is derived by Lend Guard from Credit Information about an individual that is held by Lend Guard and that is used, has been used or could be used in establishing an individual’s eligibility for consumer credit;
k) “CR Code” means the most current version of the Privacy (Credit Reporting) Code 2014, as amended and enacted from time to time;
l) “Customer” means the individuals or entity identified in the Schedule and/or any of its Affiliates;
m) “Database” means the collection of data, including the Data and the tools provided by Lend Guard for search and organisation, arranged in a systematic or methodical way comprising data records and data fields, all of which have been arranged by Lend Guard and its employees, utilising their time, labour and skill, into a collection of inter-related independent files or data capable of being individually accessed and manipulated by the Customer;
n) “Data” means any information, including the raw factual individual Credit Reporting Information and other information permitted by law, furnished to Lend Guard including from credit providers and other permissible sources in Australia which is arranged, supplied, provided, stored collected or processed by Lend Guard and stored on the Lend Guard Database;
o) “Default Information” has the definition given to that term in section 6Q of the Act;
p) “Derivative Work” means a distinct work in which the Data is altered, abridged or supplemented, and/or which incorporates additional functionality;
q) “Personal Information” means information or an opinion about an identified individual or an individual who is reasonably identifiable, whether that information or opinion is true or not, or recorded in a material form or not;
r) “Products” means the databases, products and services made available or offered by Lend Guard;
s) “Repayment History Information” has the definition given to that term in section 6V of the Act.
2. Each employee, officer, agent or authorised representative (“Representative“) of the Customer can access the Products by the registration of the Customer generally and each Representative as a user (“User“), through Lend Guard’s website, or by alternative means of access agreed to by Lend Guard, which together entitle the Customer (through its Representatives) to carry out certain searches on the Lend Guard databases via the Lend Guard website.
3. Each User can access the Products by utilising their identity and password (“Credentials“) selected by the Customer for each User through Lend Guard’s website registration process.
4. The Customer accepts sole responsibility for all database searches carried out by its Users, and all associated charges related to access to the Products following the registration of the Customer and Users and the issue of the Credentials.
5. The Customer will (and the Customer will procure each User to) ensure that proper and effective security and controls are implemented for the Credentials so that unauthorised or unlawful use of the Products is prevented. The Customer also agrees to supervise each User having access to the Product to ensure that the terms and conditions of this Agreement are strictly observed including where appropriate, procuring that Representatives enter into agreements containing relevant provisions for the security and control of the Credentials. The Customer acknowledges that the Credentials, can be changed as often as is necessary through Lend Guard’s website, to maintain security. Lend Guard reserves the right to instruct the Customer at any time to change the Credentials.
6. If the Customer suspects that the confidentiality of a User password has been compromised, the Customer must immediately advise Lend Guard by e-mail or telephone. Lend Guard will immediately suspend the Customer and User access to the Services pending the Customer’s further instructions.
7. The Customer will remain responsible and liable for all transactions effected prior to the suspension of the Customer and User registration by Lend Guard and will be liable for the consequences arising from the use of any Data obtained from the Database or Products.
8. If credits purchased are not utilised within 12 months of purchase, Lend Guard may withdraw the Products and refund to the Customer on a proportionate basis the value of any unused credits. Credits purchased are not otherwise returnable or refundable.
9. While Lend Guard will use reasonable endeavours to ensure the Products are accessible and operational at all times, it does not guarantee this will be the case. The Customer acknowledges that the Products rely on data and information from third party suppliers and from time to time, certain data and information may not be available to the Products for any reason (for example, if there is a technical failure of the servers utilised by a third party data provider, or scheduled downtime, or maintenance issues, or investigations of breaches of security). The Customer will have no claim of any kind against Lend Guard for the failure of any data or information to be available at any particular time or at all whether temporarily or permanently. Lend Guard makes no claim as to the completeness or accuracy of the Data accessed using the Data and such Data may be amended, corrected or removed at any time based on the instructions of third parties.
10. Lend Guard will use reasonable endeavours to ensure that where possible, prior notification of scheduled maintenance will be provided by Lend Guard to the Customer.
11. Where services are provided by Lend Guard without prepayment, payment of invoices is due and payable within 14 days of the invoice date.
12. Where the Customer disputes an item on an invoice then the Customer will pay that invoice, less the disputed amount by the due date and the balance shall be paid (as appropriate) once the dispute has been resolved in accordance with clause 59 of this Agreement.
13. Lend Guard reserves the right to charge interest, compounded daily, on all overdue invoices. Interest on overdue invoices shall be charged at the rate of 2% above the prevailing overdraft index rate as quoted by the Commonwealth Bank of Australia, or should that not be available, the rate which the Commonwealth Bank of Australia designates as being an appropriate substitute for the overdraft index rate.
14. For Customers introduced by a third party sales channel (“Channel”), first level telephone support will be available to Customers from the Channel to assist generally with Product use between 9am and 5pm AEDST on weekdays, excluding public holidays and any weekdays when the Channel or Lend Guard’s offices are closed during the Christmas-New Year period each year. Should any support issue raised go beyond the capacity of the Channel to resolve, becoming a second level issue, Lend Guard will similarly provide support on those issues.
15. Support services to be provided by Lend Guard or the Channel do not include:
• correction of errors or defects caused by the Customer or a third party, including the failure by the Customer or a third party to maintain a suitable operating environment or to use the Products appropriately or for the permitted purpose;
• diagnosis or rectification of faults not associated with the Products;
• resolution of installation or implementation issues, technical architecture issues and other customer specific issues.
16. The Customer and each of its Users must access and use the Products for the permitted purpose only and only as incidental to its bona fide and lawful business. In particular without limiting the generality of the foregoing the Customer must not use any data or information from the Products:
a) for resale or provision to any third party;
b) in any information storage and retrieval system unless required in order to comply with the Customer’s obligations under an Applicable Law;
c) for the production of any kind of directory other than incidental to its business (such as for client information records); nor
d) to data mine or conduct automated searches or attempt to reverse engineer, decompile, create derive works from any elements of the Lend Guard website, the Products or the data accessible through it, nor attempt to create a similar service or otherwise disassemble or attempt to extract the source code contained in the Products.
17. The Customer agrees to indemnify Lend Guard against any claims arising against Lend Guard as a result of any unlawful use of the Products by the Customer, its Representatives, or otherwise through use of the Customer’s or User Credentials.
18. The Customer grants to Lend Guard and to its suppliers of data an irrevocable, perpetual, worldwide, royalty-free, assignable and sub-licensable license to use any content provided by the Customer for the purposes of improving the Products and the quality of the services carried out through the Products subject to compliance with Applicable Law. The Customer warrants that any use by Lend Guard or others involved in the provision of services for the Products does not violate the rights of any third party, whether by way of privacy, intellectual property or otherwise.
Provision of data by the Customer
19. Where the Customer is a credit provider or debt collector, the Customer acknowledges and warrants that the Customer:
a) will comply with the relevant obligations and prohibitions applicable to it under the Applicable Law including in respect of the disclosures made by the Customer (as a credit provider or debt collector) to Lend Guard (as a credit reporting body);
b) will comply with Applicable Law, Consents and directions and other instructions provided by individuals in respect of the collection, disclosure, use and correction of information including but not limited to Credit Information and Default Information;
c) will ensure as far as reasonably practicable, that that Credit Information and Default Information it discloses to Lend Guard under the Applicable Law is accurate, up to date, relevant, complete, not duplicated and not misleading;
d) will, where required by the Applicable Law, obtain relevant Consents from and provide relevant notices to individuals in respect of the collection and disclosure to Lend Guard (and Lend Guard’s subsequent use and disclosure), of information including but not limited to Credit Information and Default Information;
e) will, in the event of an individual disputing or challenging the accuracy of the their information collected by the Customer and disclosed to Lend Guard, immediately notify Lend Guard of any required correction of that information, and in any case within 3 Business Days of receiving the correction request from the relevant individual.
20. The Customer indemnifies and holds harmless Lend Guard and its directors, officers, employees, agents and contractors from and against any loss, damage, claims, liability, cost or expense (including Lend Guard’s reasonable legal fees) incurred in connection with a breach of this Agreement by the Customer. It is not necessary for Lend Guard to incur any expense or to make any payment before enforcing a right of indemnity conferred by this Agreement.
Ownership of data / information
21. The Customer acknowledges that the suppliers to Lend Guard of data and information used in the Products hold or claim ownership and/or copyright in that data and information, and the Customer must respect, observe and not dispute any such rights and claims. These terms do not grant the Customer any licence or other right in relation to the intellectual property contained in the Products, data or information, except as expressly provided.
Term and Termination
22. The parties agree that the initial term of this Agreement is for 12 months commencing on the date the Agreement is entered into between the parties, and that this Agreement will automatically renew for a period of 12 months unless otherwise terminated by either party.
23. Either party may terminate this Agreement by giving the other party not less than 60 days’ prior written notice.
24. Upon lawful termination of this Agreement in accordance with clauses 22 or 23 and without prejudice to any rights that Lend Guard may have, the Customer will:
a) at Lend Guard’s option, return to Lend Guard and/or destroy, all Confidential Information and any other material containing Data, that is within the reasonable possession or control of the Customer and certify in writing by way of a certificate from the Customer’s managing director attesting to such delivery and/or destruction, unless such information and materials must be retained by the Customer to comply with its obligations under an Applicable Law;
b) expunge all Data from the Customer’s computer system or storage media in the Customer’s reasonable possession or control and certify in writing by way of a certificate from the Customer’s managing director attesting to such erasure and/or destruction, unless such Data must be retained by the Customer to comply with its obligations under an Applicable Law; and
c) pay all outstanding fees in accordance with the payment terms of the relevant invoices or within 14 (fourteen) days of the termination, whichever is sooner.
Termination/suspension of Products- default by customer
25. In addition to any other rights it may have at law or in equity, Lend Guard may, without notice, temporarily or permanently suspend access to the Products and/or terminate this Agreement:
a) If the Customer fails to pay when due any sum payable under this Agreement;
b) If the Customer fails to perform or observe any of the provisions of this Agreement;
c) If the Customer provides false or misleading information in regard to this Agreement or the Products;
d) If Lend Guard is reasonably of the opinion that the Customer or any other person using the Customer’s user identity or password has used, or may use, the Products or any information contained therein for any unlawful or improper purpose or in a manner that may jeopardise security, contravene any Federal or State law of Australia, or law of New Zealand, or may interfere in or impede the proper functioning of the Products,
e) If the operation of the Products or any of Lend Guard’s obligations under this Agreement become unlawful; or
f) If Lend Guard is no longer able to provide its Products or related services, including on commercially reasonable terms.
26. Lend Guard may vary the terms and conditions of this Agreement by providing the Customer with 30 days prior written notice of the change. Lend Guard will not be responsible for any loss sustained including without limitation any consequential loss, loss of profits or economic loss, associated with such variation.
27. Where a variation to this Agreement is required to comply with any Applicable Law or lawful direction of a regulatory body, Lend Guard may vary the terms of this Agreement without prior written notice of such changes to the Customer. In such circumstances, Lend Guard will provide the Customer with notification as soon as practicable after the variation. Lend Guard will not be responsible for any loss sustained including without limitation any consequential loss, loss of profits or economic loss, associated with such variation.
28. By accessing the Products after the date of variation of this Agreement, the Customer acknowledges that they have agreed to the terms of the Agreement as varied. If the changes are such that the Customer is materially and adversely affected by them, the Customer may immediately terminate this Agreement by written notice to Lend Guard, and must cease accessing the Products. If the Customer terminates the Agreement in these circumstances, Lend Guard will refund to the Customer a pro-rata amount of any prepaid usage, the pro-rate value representing the unused period only.
29. Lend Guard reserves the right to vary the fees charged for its Products at any time and from time to time, providing the Customer with not less than 30 days’ written notice of such change.
30. The Customer acknowledges that the information contained within the Products is obtained from a variety of third party suppliers and is provided on an “as is” and “as available” basis. Lend Guard discloses that the Products contain omissions and errors and none of Lend Guard, its related companies, employees and agents warrants or represents that the Products or information contained therein are complete, accurate, up to date or free from errors or omissions, nor that they are of any particular quality or suitable for any particular purpose.
31. The Customer acknowledges that Lend Guard is not liable for any losses incurred which may be wholly or partly caused by any inaccuracy, omission, defect or error in the Products or information or Data accessed or retrieved using the Product.
Withdrawal / return of information
32. The Customer acknowledges and agrees that as the Products made available to the Customer
is continually being amended and updated by Lend Guard. Lend Guard may, from time to time at its sole discretion, change the content or the format of the Data and Products and the location of delivery, in order to improve its operation and efficiency. In the event that the changes will have any effect on the interfaces used by the Customer (meaning that the real-time exchange of information will break down), such breaking changes will be communicated to the Customer ahead of time, affording the Parties the opportunity to manage the change with the least possible amount of interruption to the Products.
33. If Lend Guard requires the Customer to return or delete from all records Data or other information retrieved by the Customer using the Product (for example if confidential information has been inadvertently supplied or individual Credit Information requires correction or removal), the Customer will comply with the request within the timeframes specified by Lend Guard.
34. Lend Guard or its duly appointed independent agent (as required by the Act) will be entitled
to conduct a compliance assessment, either off-site or at the premises of the Customer to determine whether the Customer conforms to the restrictions on use of the Data, whether the Customer uses the Products for a lawful purpose, whether the Customer has the necessary Consents and whether the Customer complies with its obligations in terms of this Agreement and the Applicable Law. The assessment shall be subject to such confidentiality undertakings as the Customer may reasonably require and shall be conducted on reasonable notice to the Customer. The assessment is not legal or compliance advice.
35. The cost of the compliance assessment will be at Lend Guard’s expense, unless the assessment indicates a breach of this Agreement by the Customer, in which event the Customer will be responsible for the cost of the compliance assessment.
36. The Customer shall keep proper records of every activity undertaken including without limitation, its use of the Products or Data or information contained in or retrieved from the Products.
37. Upon reasonable notice to the Customer, Lend Guard or its authorised representatives, reserves the right to inspect and audit the Customer’s records and make copies of those records concerning the Products or information or Data derived from use of the Product, for the purpose of verifying the Customer’s compliance with this Agreement.
Limitations on liability
38. Lend Guard will not be liable for any damages, injury or loss arising or resulting, directly or indirectly, from the Customer’s use of the Products or the Data retrieved from the Products, nor for any loss or damage arising or resulting directly or indirectly, from any statement information or advice made or given, whether negligently or otherwise, in relation to the Products or their compilation or production or the use of any Data retrieved from the Products.
39. Lend Guard does not exclude or limit the applicability of any statute (such as the Competition and Consumer Act 2010 (Cth)) where to do so would contravene that statute, or cause any part of this Agreement to be void. Subject to that and to the extent permitted by law, Lend Guard, its related companies and their officers, directors, employees, agents and representatives exclude all express or implied representations, conditions, warranties guarantees that are not included in this Agreement including those relating to acceptable quality, timeliness or fitness for purpose and will have no liability (including liability for negligence) to the Customer for any loss, damage, cost or expense (including but not limited to consequential loss, economic loss, lost profits or data) incurred or arising by reason of any person relying on any material published in any of the Products or Data retrieved from the Products, nor by reason of any error, omission or misrepresentation, nor in respect of any difficulties that the Customer may have from time to time or at any time in accessing or otherwise using any of the Products, or in accessing or securing assistance from any telephone or other support service that Lend Guard provides from time to time.
40. Lend Guard’s liability for breach of any obligation or for a condition or warranty that by law cannot be excluded is limited (at Lend Guard’s option) to the supplying of the services again, or the payment of the cost of having the services supplied again.
41. Lend Guard shall not be liable for any reasonable failure to perform its obligations under this Agreement where that performance is delayed, prevented, restricted or interfered with for any reason outside Lend Guard’s reasonable control.
Website terms and conditions
42. The Customer will observe the Website Terms and Conditions that are a pre-requisite to entering the Lend Guard website from time to time, available here.
43. The Customer must comply with all Applicable Laws in respect of the access and use of the Products including the retrieval of Data from the Products and the disclosure of individual Credit Information and Default Information to Lend Guard.
44. The Customer must not transfer any Data retrieved from the Customer’s access to the Products, to any person or entity without Lend Guard’s prior written consent, unless otherwise stated in this Agreement.
45. Both Parties acknowledge that by virtue of this Agreement, the parties shall come into possession of and have access to each other’s Confidential Information.
46. The parties acknowledge that the Confidential Information is not in the public domain and is a valuable, special and unique asset proprietary to the party who discloses their Confidential Information to the other Party (“Disclosing Party”). If such Confidential Information is disseminated or used by any competitor, or potential competitor of the Disclosing Party or in competition with the Disclosing Party or otherwise, this will cause the Disclosing Party to suffer material harm and cause the value of its know-how and proprietary interest therein
to be diminished.
47. The parties shall at all times, during the terms of this Agreement and for a period of 12 (twelve) months after the termination or expiration of this Agreement ensure that they and their directors, officers, employees, agents and representatives treat the Confidential Information and the terms contained in this Agreement as confidential and undertake not to disclose to any third party any such Confidential Information except insofar as permitted in terms of this Agreement, if such disclosure is authorised in writing by both parties or is ordered by a Court of law, or is otherwise essential for application in judicial action or the performance of obligations in terms of this Agreement.
48. The party who receives the Disclosing Party’s Confidential Information (“Receiving Party”) agrees that the unauthorised disclosure of the Confidential Information to a third party may cause irreparable loss, harm and damage to the Disclosing Party. Accordingly, the Receiving Party indemnifies and holds the Disclosing Party harmless against any loss, action, cost, expense, claim, harm or damage, of whatever nature, suffered or sustained by the Disclosing Party pursuant to a breach by the Receiving Party of their obligations of confidentiality under this Agreement.
49. The Receiving Party shall pay all reasonable legal costs (including legal disbursements) incurred by the Disclosing Party in bringing any application for interim and final interlocutory relief against the Receiving Party on an attorney and own client basis, on demand.
50. The obligations of confidentiality will not apply:
a) in respect of any information which is previously known by the Receiving Party (other than as a result of any breach or default by the Receiving Party or other person of any agreement under which such Confidential Information was obtained);
b) in respect of any information which is in the public domain (other than as a result of any breach or default by either party);
c) any disclosure to the Receiving Party’s professional advisors, executive staff, board of directors or similar governing body who:
i. the Receiving Party believes have a need to know such information, and
ii. are notified of the confidential nature of such information and are bound by a general duty of confidentiality on terms materially similar to those set out in this Agreement;
d) any disclosure required by law or by any court of competent jurisdiction or by any regulatory authority or by the rules or regulations of any regulated stock exchange;
e) any disclosure by the Receiving Party to its shareholders or members pursuant to any reporting obligations that party may have, provided that each such shareholder or member is notified of the confidential nature of such information and is bound by a general duty of confidentiality on terms materially similar to those set out in this Agreement.
51. In the event that a Receiving Party is required to disclose Confidential Information as contemplated in clause 54(d), that party will:
a) advise the Disclosing Party in writing prior to disclosure, if reasonably possible;
b) take such steps to limit the disclosure to the minimum extent required to satisfy such requirement and to the extent that it lawfully and reasonably can;
c) afford the Disclosing Party a reasonable opportunity, if possible, to intervene in the proceedings;
d) comply with Disclosing Party’s reasonable requests as to the manner and terms of such disclosure; and
e) notify the Disclosing Party of the recipient of, and the form and extent of, any such disclosure or announcement immediately after it was made.
52. Each party must inform any officer, employee or agent or any professional or other advisor advising it in relation to the matters referred to in this Agreement, or to whom it provides Confidential Information that such information is confidential and instruct them:
a) to keep it confidential; and
b) not to disclose it to any third party other than to those persons to whom it has already been disclosed in accordance with the terms of this Agreement.
53. The Receiving Party which discloses the Disclosing Party’s Confidential Information to any third party in accordance with this Agreement will remain responsible for any breach of confidentiality by the person to whom it has disclosed any Confidential Information.
54. The Disclosing Party may, by notice in writing, be entitled to demand the prompt return of the whole or any part of any Confidential Information supplied by it to the Receiving Party, and the Receiving Party hereby undertakes to comply promptly with any such demand.
55. The parties’ obligations of confidentiality under this Agreement will survive the termination of this Agreement for any reason.
56. Any provision of this Agreement that is wholly or partially void or unenforceable is severed to the extent that it is void or unenforceable. The validity or enforceability of the remainder of the Agreement is not affected.
57. A failure to, or delay in Lend Guard exercising enforcing its rights, will not constitute a formal waiver. A provision or right under this Agreement may not be waived unless in writing signed by the party granting the waiver.
58. This Agreement is governed by the laws of Victoria, Australia and the Customer irrevocably and unconditionally submits to the exclusive jurisdiction of the courts of Victoria and the Commonwealth of Australia.
59. In the event that a dispute or claim arises in relation to this Agreement, Lend Guard may elect to settle the dispute or claim by arbitration in accordance with the Australian Centre for International Commercial Arbitration (ACICA) Arbitration Rules at ACICA in Melbourne, Australia.
60. This Agreement and the Schedules constitute the entire agreement between the parties and neither party shall be bound by any undertakings, representations, warranties or promises not recorded in this Agreement.
61. This Agreement supersedes and relaces any agreements previously entered into between the parties.