1. This document ("Terms") is an agreement between you and VOLOPAY PTY LTD. (ACN: 645096635) ("Company") which set outs the term and conditions governing your use and access of:
(a) the electronic platform that is owned and operated by the Company ("Volopay"); and
(b) the products and services offered by the Company and third parties engaged by, or in partnership with, the Company through Volopay ("Services").
2. The fees applicable to you for the use of Volopay and/or the Services are set out in Appendix A to the Terms ("Fees") and are strictly non-refundable unless stated otherwise by the Company.
3. The version of the Terms currently in force will be available through Volopay and on the official website of the Company at https://www.volopay.com/au ( "Website" or "Platform"), together with those found at https://www.airwallex.com/au/terms/volopay-scale, including the Financial Services Guide and Product Disclosure Statement. To the maximum extent permitted by law, you agree that it shall be your sole responsibility to check for any updates to the Terms.
4. In interpreting the Terms, the intention and purpose behind the specific paragraph or paragraphs generally must be taken into consideration.
5. The Terms shall be of a continuing nature.
6. To be eligible to use Volopay and/or the Services, you must:
(a). in the case of an individual:
(i). have attained at least 18 years of age at the time of accessing and/or using Volopay and/or the Services; and
(ii). have the legal capacity to accept the Terms under the laws applicable to you; or
(b). in the case of a legal entity other than an individual, have the full legal capacity (including obtaining the necessary approvals) to accept the Terms.
(each an "Eligible User").
7. By accessing and/or using Volopay, you are representing and warranting to the Company that you are an Eligible User.
8. Despite being an Eligible User, the Company reserves the right to limit your access and/or use of Volopay and/or the Services in accordance with the Terms at the sole discretion of the Company.
ACCEPTANCE OF TERMS
9. By accessing and/or using Volopay, you expressly acknowledge and represent that you have carefully read, understood and accepted the Terms in its entirety as a legally binding agreement between yourself and the Company.
10. You should immediately stop accessing and/or using Volopay if you do not accept the Terms.
AMENDMENTS TO THE TERMS
11. The Company may, from time to time, amend, restate or supplement the Terms (including the Fees) at the sole discretion of the Company, including to take into account future developments such as change in industry trends and/or any changes in legal and/or regulatory requirements applicable to the Company.
12. Any amendment, restatement or supplement to the Terms shall be available through Volopay and on the Website and, unless stated otherwise, shall be effective and binding on you upon publication or at such time as may be prescribed by the Company.
13. You agree that the publication of any amendment, restatement or supplement to the Terms through Volopay and on the Website shall be sufficient notice to you and that your continued access and/or use of Volopay and/or the Services shall constitute your acceptance of such amendment, restatement or supplement to the Terms.
SUBMITTING OF DATA
14. It shall be your sole responsibility to ensure that any data, document or other information, whether electronic otherwise, that you submit to the Company or through Volopay and/or the Website:
(a). is complete, true and accurate in all respects at all times;
(b). where applicable, is provided within reasonable time;
(c). is not false, misleading or deceptive in any respect at all times; and
(d). does not omit anything that affects or is likely to affect the meaning or significance of such data, document or other information in any respect at all times.
COMPLIANCE WITH THE TERMS AND APPLICABLE LAWS
15. In accessing and/or using Volopay and/or the Services, you agree that it is your sole responsibility to ensure your compliance with the following at all times:
16. the Terms; and
17. any applicable laws and regulations (whether in or out of Australia).
18. In order to access and/or use the Services, you must first register an account with the Company ("Account") which will require you to provide us with data relating to you, including:
(a). Your full legal name;
(b). Date of birth/incorporation;
(c). Residential/registered address;
(d). in the case of individuals, your nationality;
(e). National identity or passport number (in the case of individuals) or Australian Company Number (in the case of entities);
(f). contact details, including an email address and telephone number at which you can be contacted at;
(g). other information as may be required to verify data provided by you; and
(h). other information as may be required to allow the Company to comply with its anti-money laundering and countering the financing of terrorism obligations under the applicable laws.
19. "personal data" is defined under the Personal Data Protection Act 2012 of Australia as data, whether true or not, about an individual who can be identified:
(a). from that data; or
(b). from that data and other information to which the organisation has or is likely to have access.
20. You may refer to the Personal Data Policy of the Company which is available at [insert link] for details on how the Company collects, uses, stores and protects personal data that the Company comes into possession of.
21. The Company reserves the right to request for further information from you relating to your Account (whether active or inactive) at any time.
22. You may apply for an Account by following the relevant instructions on Volopay.
23. Where the Company approves your application for an account, the Company will issue you an Account.
24. Subject to the approval of the Company, you may register sub-accounts under your Account (each a "Sub-Account") as part of the Services provided by the Company by following the instructions on Volopay.
25. In addition to each Account and/or Sub-Account(s), you are required to register with Airwallex Pty Ltd (ABN 37 609 653; AFSL 487 221), which has its registered office at Level 7/15 William Street, Melbourne, Victoria ("Airwallex"), being a service provider engaged by the Company, to utilise the Services ("Business Account").
26. The terms and conditions governing each Business Account shall apply to you and/or your authorised representative(s). The terms and conditions can be found at https://www.airwallex.com/au/terms/volopay-scale , including the Financial Services Guide and Product Disclosure Statement. Please take some time to read through the terms and conditions governing each Business Account as you and/or your authorised representative(s) must accept such terms and conditions relating to the creation of a Business Account before the Services may be utilised.
27. In accepting the Terms you are consenting to the Company providing Airwallex with information relating to you (including personal data), insofar as such information is required by Airwallex in relation to the creation of the corresponding Business Account and the provision of the Services.
28. When you use your Account and/or Sub-Account(s), you are authorising the Company to act as your agent in relation to the holding, sending and/or receiving of funds into your Account and/or Sub-Account(s), including instructing third-party service provider(s), if any, in relation to the same.
Consolidation of Account and/or Sub-Account(s)
29. The Company may, without prior notice to you and/or your authorised representative(s), combine or consolidate any number of your Account and/or Sub-Account(s) (including combining or consolidating your Sub-Account(s) with your Account) and offset the aggregate value in such combined or consolidated accounts against any outstanding liability owed by you to the Company.
Responsibility for your Account/Sub-Account
30. You acknowledge and agree that you shall be solely responsible for your Account or Sub-Account (as the case may be), provided always that the owner of an Account shall be ultimately responsible for the compliance of all related Sub-Account(s) and their respective user(s) with the Terms at all times.
31. Your Account and/or Sub-Account(s) can only be used by you and/or your authorised representative(s) (as the case may be) and you acknowledge and agree that you shall be fully liable at all times for any communication, transaction, instruction and/or operation made or performed, processed or effected through your Account and any Sub-Account (each an "Instruction") by you or any person purporting to be you, acting on your behalf or purportedly acting on your behalf, with or without your consent.
32. You must immediately notify the Company if you suspect or become aware of the use of your Account and/or any Sub-Account by any person or other entity other than yourself and your authorised representatives.
33. Without prejudice to any other provision of the Terms, you authorise the Company to act upon any Instruction (though the Company is not obliged to) which the Company believes was given by you (whether through your Account or otherwise).
34. Any Instruction shall not be considered to have been received by the Company until it has actually been received successfully by the Company (whether electronically or otherwise).
35. The Company shall not be responsible for confirming and/or verifying any Instruction or for monitoring or refusing to process any duplicate Instructions.
36. You acknowledge and agree that any records created and maintained by the Company of Instructions by you or any person purporting to be you, acting on your behalf or purportedly acting on your behalf, with or without your consent, shall be binding on you for all purposes and shall be conclusive evidence of such Instructions.
37. You acknowledge and agree that the Company may, at its sole discretion, refuse to act or defer acting upon any Instruction.
38. The Company shall have the absolute discretion to investigate your Account and/or any Sub-Account(s), including where the Company suspects or has determined that:
(a). you and/or your authorised representative(s) are in breach of any the Terms (or any part thereof);
(b). your Account and/or any Sub-Account is associated with any unusual or illegal activities, including any form of fraud;
(c). there are security risks associated with your Account and/or Sub-Account(s) that cannot be adequately mitigated or resolved;
(d). your Account and/or Sub-Account(s) is in breach of any applicable laws or regulations (whether in or outside of Australia);
(e). there is any other reason which could compromise the provision of Volopay and/or the Services by the Company or any other operations of the Company.
39. In the event the Company commences any investigation into your Account and/or Sub-Account(s), the Company shall provide you with written notice of the commencement of such investigation and the nature of the allegations that form the basis of the investigation and you shall have [seven (7) calendar days] to respond to such allegations, provided always that the Company may take any action it deems necessary at its sole discretion even before such written notice is received by you.
40. Following any investigation, the Company reserves the right to take any action that the Company deems necessary at its sole discretion, including the suspension or termination of your Account and/or Sub-Accounts, whether in whole or in part.
41. Your Account and/or Sub-Accounts shall be immediately suspended and subject to review by the Company if it is not accessed and/or used for a continuous period of [insert period] ("Inactive Account").
42. Following the review under paragraph 44 above, where the Company deems your Account and/or Sub-Account(s) to be an Inactive Account, the Company will notify you of the same through such means of communication as the Company may prescribe from time to time ("Notice of Inactivity").
43. If you do not respond within the period stipulated in the Notice of Inactivity, a monthly fee will be charged in relation to each Inactive Account for as long as it remains inactive, such fee to be paid out of the value in the respective Inactive Account or, where there is insufficient value in the Inactive Account, consolidate or combine such Inactive Account in accordance with paragraph 32 above.
44. In addition to charging the monthly fee stated in paragraph 46 above, the Company may take any other action it deems necessary at its sole discretion in relation to any Inactive Account, including terminating such Inactive Account.
45. Where your Account and/or Sub-Account(s) has been suspended for inactivity under paragraph 44 above, you may request to reactivate your suspended Account and/or Sub-Account(s) by filing a request with the Company and the Company may require you to provide such information and/or documents as the Company deems necessary before deciding on whether to reactivate your Account and/or Sub-Account(s).
46. Where any value remains in any Inactive Account that has been terminated by the Company, you may submit a request for the refund of such value (subject to any applicable fees) ("Refund Request") through any one of the following means:
(a). by submitting a written request to the Company at firstname.lastname@example.org; or
(b). contacting the helpdesk of the Company at [+61 485865996].
47. The Company is under no obligation to process any Refund Request and you agree that unless a Refund Request has been approved by the Company, you shall have no claim whatsoever against the Company in relation to any Inactive Account(s) that has been terminated and the value contained therein.
48. Any value under any Refund Request approved by the Company shall be transferred to the bank account provided by you when registering for an Account.
49. As part of the Services, you may apply for stored-value/ debit cards to be issued to you in relation to each Account and/or Sub-Account(s) (each such stored-value/ debit card a "Corporate Card").
50. All Corporate Cards are issued by Airwallex Pty Ltd (ABN 37 609 653; AFSL 487 221) ("Airwallex")1, being a service provider engaged by the Company, and you are required to register an account with Airwallex in order to receive any Corporate Card.
51. You may apply for a Corporate Card in by following the relevant instructions set out in Volopay.
52. The terms and conditions governing each Corporate Card shall apply to you and/or your authorised representative(s). The terms and conditions can be found at [insert link]. Please take some time to read through the terms and conditions governing each Corporate Card as you and/or your authorised representative(s) must accept such terms and conditions before any Corporate Card may be issued to you and/or your authorised representative(s).
53. In accepting the Terms you are consenting to the Company providing Airwallex with information relating to you (including personal data), insofar as such information is required by Airwallex in relation to issuance of each Corporate Card and the provision of the Services.
54. Unless terminated or cancelled earlier (as the case may be), each Corporate Card shall be valid for a period of time stipulated by the Company.
55. Any renewal or replacement of each Corporate Card shall be at the sole discretion of the Company and you agree that you shall be fully responsible for all costs in relation to any renewal or replacement of any Corporate Card(s) belonging to you.
56. Volopay and all content contained therein (except for data belonging to you), including any data, images, links, sounds, graphics, video, software, applications and other digital materials ("Platform Materials") are the property of the Company. Volopay may provide the Revolving Credit Facility (RCF) as a part of the Services subject to the requisite approvals.
57. Volopay is provided on an "as is" and "as available" basis and may be modified, suspended or discontinued (whether in part or in whole) from time to time at the sole discretion of the Company.
No Representations and Warranties by the Company
58. Volopay is provided without any representation and/or warranty by the Company, whether express or implied, including any representation and/or warranty that:
(a). Volopay will be provided uninterrupted, secure and/or free from any error and/or omission and that any identified defects will be corrected;
(b). Volopay is fit for any particular purpose or requirements of any person;
(c). any data transmitted by you or to you through Volopay is secure, including the possibility of such data transmission being intercepted;
(d). there will be no delay and/or interruption to any transmission of data through Volopay.
59. While the Company will take measures to ensure the continuous operations and security of Volopay, the Company does not guarantee and/or represent in any way that such measures will be sufficient.
60. The Company controls and maintains Volopay from Australia and makes no representation that Volopay is appropriate and/or available for access and/or use outside of Australia.
61. You agree and acknowledge that the Terms, Volopay and the Platform Materials do not include the provision of internet access or other telecommunication services by the Company.
62. Any internet access or telecommunications services (such as mobile data connectivity) required by you to access to and/or use Volopay and/or the Platform Materials shall be your sole responsibility and shall be separately obtained by you, at your own cost.
63. You agree and undertake not to do any one or more of the following:
(a). use or upload, in any way, any software or material that contains, or which you have reason to suspect contains, computer virus or other malicious, destructive or corrupting code, agent, program or macros (including those which may impair or corrupt the Platform Materials or damage or interfere with the operation of any electronic device of any other user or Volopay);
(b). post, promote or transmit any materials or information through Volopay which are or may be illegal, misleading, incomplete, erroneous, offensive, indecent, defamatory or which may not be lawfully disseminated under applicable laws or which are otherwise objectionable;
(c). use Volopay other than in conformance with the acceptable use policies of any connected computer networks, any applicable internet standards and any other applicable laws;
(d). impersonate any person or entity or to falsely state or otherwise misrepresent your affiliation with any person or entity;
(e). anything which will amount to a contravention of the Terms and/or any applicable laws and regulations.
Transmissions and Communications
64. With respect to all contents of transmissions or communications you make or submit through the Volopay, the Company shall be free to reproduce, use, disclose, host, publish, transmit and distribute all such contents of transmissions or communications or any part thereof to others without limitations, and you hereby grant to Volopay and its agents (if any), a non-exclusive, world-wide, royalty-free, irrevocable licence and right to do the same.
65. You accept the risk that any data transmitted or communicated through Volopay may be accessed by unauthorised third parties and that the transmission of data or communications over the internet may be subject to interruption, transmission blackout, delayed transmission due to internet traffic or incorrect data transmission due to the public nature of the internet.
66. You acknowledge and agree that any records created and maintained by the Company of the communications, transactions, instructions and/or operations made or performed, processed or effected through Volopay by you or any person purporting to be you, acting on your behalf or purportedly acting on your behalf, with or without your consent, shall be binding on you for all purposes and shall be conclusive evidence of such communications, transactions, instructions and/or operations.
67. Without prejudice to the generality of paragraph 76 above, the Company makes no representation and/or warranty as to having reviewed and/or verified the relevance, timeliness, accuracy, adequacy, commercial value, completeness or reliability of any systems, services, content, materials, products and/or programmes provided and/or offered by third parties through Volopay.
68. Unless expressly stated otherwise, the Company:
(a). does not endorse, sponsor and/or certify any systems, services, content, materials, products and/or programmes provided and/or offered by third parties through Volopay; and
(b). is not involved in the provision of such systems, services, content, materials, products and/or programmes provided and/or offered by third parties through Volopay.
69. Unless expressly provided for, the Company is not a party to any agreement between you and any third-party (whether provided and/or offered through Volopay) relating to your access to and/or use of systems, services, content, materials, products and/or programmes provided and/or offered by such third-party through Volopay ("Third-Party Agreement").
70. For the avoidance of doubt, the Company shall not be liable for any losses, liabilities, damages, costs and/or expenses (including any direct, indirect, incidental, special, consequential or punitive damages or economic loss or any claims for loss of profits or loss of use) (collectively "Losses") arising from or in connection with your access to the Services and/or use of systems, services, content, materials, products or programmes under any Third-Party Agreement, or for any purchase and/or subscription made in relation thereto.
71. You acknowledge and agree that you will be solely responsible for any access to and/or use of the Services, any third-party systems, services, content, materials, products or programmes provided and/or offered through Volopay.
72. You agree that the Company may, at its sole discretion, deny you access to Volopay (or any part thereof) and/or the Platform Materials (whether in part or in whole) for any reason, including where:
(a). the Company believes that you have violated or acted inconsistently with any terms or conditions set out herein;
(b). the Company and/or any regulatory authority (including the Monetary Authority of Australia) is of the opinion that it is not suitable to continue providing the services relating to Volopay and/or the Platform Materials, whether generally or specifically to you.
73. The Company and its licensor(s) (if any) reserves and retains all rights (including copyrights, trademarks, patents as well as any other intellectual property right) in relation to the products, services and all content and data contained in or provided on or via Volopay and/or the Platform Materials (including all texts, graphics and logos).
74. You may not do anything that will violate or infringe such intellectual property rights and, in particular, you shall not copy, download, publish, distribute, transmit, disseminate, sell, broadcast, circulate, exploit (whether for commercial benefit or otherwise) or reproduce any of the information or content contained in or provided on or via Volopay and/or the Platform Materials in any form without the prior written permission of the Company and/or its licensor(s) (as the case may be).
75. Subject to paragraph 94 below, no part or parts of Volopay and/or any Platform Materials may be reproduced, distributed, republished, displayed, broadcast, hyperlinked, mirrored, framed, transferred or transmitted in any manner or by any means or stored in an information retrieval system without the prior written permission of the Company and/or its licensor(s) (as the case may be).
76. Subject to any other applicable terms, guidelines, notices, rules and policies, the Company grants you a non-transferable, non-exclusive, revocable, limited licence to use and access Volopay and the Platform Materials solely for your own personal, informational and non-commercial use, provided that you do not modify any Platform Materials and that you retain all copyright and other proprietary notices contained in the Platform Materials.
77. Save as expressly provided otherwise in the Terms, you acknowledge that you are not granted any licence, interest or right by virtue of your use of or access to Volopay and/or the Platform Materials.
LIMITATION OF LIABILITY
78. The Company, its directors, officers, employees, representatives and agents (each a "Relevant Person") shall not, save for any wilful default or fraud on the part of any Relevant Person, be liable to you for any Losses arising from or in connection with, or anything done or not done as a direct or indirect consequence to, the provision of Volopay and/or the Services (whether in whole or in part), including any one or more of the following:
(a). any failure, error, delay or malfunction of Volopay, howsoever caused and whether or not identified or identifiable;
(b). the access to, use of or inability to use Volopay;
(c). the access to, use of or inability to use any third-party services that may be accessed through or used on Volopay;
(d). any thing done or omitted to be done in the course of, or in connection with the discharge or purported discharge of the obligations and/or rights of the Company under any applicable laws and regulations or in accordance with the Terms;
(e). the exercise of the discretion of the Company under the Terms;
(f). any failure, error, delay or malfunction of the provision of any services (whether in whole or in part) by any service provider engaged by the Company;
(g). the termination of the services (whether in whole or in part) provided by any service provider engaged by the Company (whether in whole or in part and whether at the election of such service provider or otherwise) that allows the Company to provide Volopay and/or the Services;
(h). any virus or other disruptive, destructive, malicious or corrupting program, code, agent, script or macro;
(i). the originality, accuracy, adequacy, timeliness or completeness of Volopay and/or any Platform Materials (collectively, the "Content");
(j). any reliance by you on the Content or any part thereof;
(k), any information transmitted or received through Volopay, or the interception of or access to such information by any unauthorised person;
(l). any event, occurrence, or circumstance beyond the reasonable control of the Company, including any act of God, civil commotion, riot, act of war or terrorism, strike, government action, accident or equipment or transmission failure;
(m). the provision of Volopay and/or the Services.
79. You expressly agree to indemnify, defend, save and hold harmless all Relevant Persons from all liabilities, claims and Losses arising out of or in connection with:
(a). your Account and/or Sub-Account(s);
(b). the access and use of Volopay;
(c). the access and use of the Services, including any Loss incurred or suffered as a result of the Company having to convert any currency;
(d). any breach by you of the Terms;
(e). any negligent act and/or omission by you in connection with Volopay and/or the Terms, other than through the wilful default or fraud by the Relevant Person.
80. You acknowledge and agree that any communication and/or document to be sent to you may be by way of electronic communication and you shall be considered to have received any such communication and/or document:
(a). at the time of posting of such communication to our website at [insert link] and/or Volopay or such other time as may be prescribed in such communication;
(b). at the time of which the email containing such communication and/or document is sent to you or such other time as may be prescribed in the email;
(c). at the time of posting (whether through ordinary post or otherwise) such communication and/or document to you or such other time as may be prescribed in such communication and/or document;
(d). through such other means at such times as the Company may prescribe from time to time.
81. The Company may, at any time, assign, mortgage, charge or otherwise transfer any or all of our rights and obligations under the Terms without restriction.
82. You may not assign, mortgage, charge or otherwise transfer any of your rights and obligations under the Terms (including the licence granted to you under paragraph 94 above) without the prior written consent of the Company and any attempted assignment mortgage, charge or otherwise transfer in violation of the Terms shall be null and void.
83. If any provision of the Terms or part thereof is rendered void, invalid, illegal or unenforceable by any legislation to which it is subject or by a decision of a court of competent jurisdiction ("Affected Provision"), the Affected Provision shall be rendered void, invalid, illegal or unenforceable only to that extent and it shall in no way affect or prejudice the enforceability of the remainder of the Affected Provision or the other provisions of the Terms.
84. No failure or delay to exercise or enforce any right conferred upon the Company under the Terms shall be deemed to be a waiver of any such rights or operate so as to bar the exercise or enforcement thereof at any subsequent time or times.
85. Any waiver of any right arising from a breach or non-performance of the Terms or arising upon default under the Terms granted to you shall be null and void unless made in writing and signed by the Company.
86. If the Terms are translated into a language other than the English language and there is any conflict or inconsistency between such translation and the English text, the English text shall prevail.
RIGHTS OF THIRD PARTIES
87. Save for a Relevant Person(s), no person or entity who is not a party to the Terms shall have no right under the contract act of Australia or other similar laws to enforce the Terms or any part thereof, regardless of whether such person or entity has been identified by name, as a member of a class or as answering a particular description.
88. For the avoidance of doubt, any amendments to the Terms in accordance with the provisions herein shall not require any consent from any person or entity (including any Relevant Person) who is not a party to the Terms.
GOVERNING LAW AND JURISDICTION
89. The Terms shall be governed by and construed in accordance with the laws of Australia.
90. In the event of any claim, dispute or difference ("Dispute") that may arise out of or in connection with the Terms and/or Volopay (including any question relating to the existence, validity of termination of the Terms), you agree to enter into negotiations with the Company in good faith to resolve such Dispute ("Good Faith Negotiations").
91. The seat of arbitration shall be Australia.
92. The arbitration shall be conducted by a single arbitrator and wholly in the English language.
93. Any decision and/or award made by an arbitrator in accordance with the Terms shall be final and binding on the parties to such arbitration and the parties to such arbitration expressly waive their rights to appeal any such decision and/or award.