1. This Agreement
1. Transacting - These terms and conditions apply to Individuals and Corporates ("you") who are dealing with Smartway System PTY LTD (ACN 611 856 154) ("us" or "we") through any of our or our “Trading Name” websites.
2. Ownership of Funds - You must be the owner of the money you are intending to transfer.
3. Structure of this Agreement - This Agreement is a master agreement which applies to all Transactions you subsequently enter into with us. The specific details of each individual Transaction will be agreed separately at such time as you book those Transactions; they will constitute separate agreements in their own right but will incorporate these terms and conditions.
4. Other Documents You Must Read - You acknowledge that you have been provided with copies of the following documents in accordance with, to the extent applicable, the requirements of the Corporations Act:
o Our Website Disclaimer. o Our Privacy Statement. o The disclaimers can be found on our websites.
2. Our Service
1. Foreign Exchange Services - We hold an Australian Transaction and Reports and Analysis Centre ("AUSTRAC") Licence Number: 100520069, authorising us to transfer funds to and from Australia. We offer a service to convert your Australian Dollars to a foreign currency and then pay your beneficiary or we receive foreign currency from your payee and transfer to your Australian Dollar bank account in Australia.
2. No Margin or Speculative Trading - We do not offer any form of margin or speculative trading facilities. When you enter into a Transaction, you must deliver to us the full amount of the funds you are transferring.
3. No Exchange Rate Set-Off - We will not agree to enter into any kind of set-off arrangement that would allow you to pay us only the amount of any loss that might be realised on settlement of the Transaction, or us to pay you any profit, as the result of exchange rate movements.
4. No Financial Advice - We will not take into account your specific financial circumstances or needs when we enter into a Transaction with you. To the extent that we provide you with any advice, it will relate only to the mechanics of the transaction you are proposing to enter into or to publicly available information. You must obtain your own financial advice and make your own assessment as to whether our service is appropriate for your particular requirements. You must select the type and timing of each Transaction you enter into yourself.
3. Your Instructions
1. Username and Password - We will either:
1.1. issue you with a username and password that will enable you to provide us with Instructions through our website. It is your responsibility to ensure the security of your username and password. We will rely on any Instructions received pursuant to the use of the username and password without checking the identity of the user and you will at all times be bound by those Instructions. We will not be liable for any loss you incur from somebody misusing your username and password to access our website services.
1.2. allow you to connect with our website for authentication purposes, using your Social Media logon and password. It is your responsibility to keep your social media username and password safe and secure. We will rely on any Instructions received pursuant to the use of the username and password without checking the identity of the user and you will at all times be bound by those Instructions. We will not be liable for any loss you incur from somebody misusing your social media username and password to access our services.
2. Account Setup and Cancelation - we are under no obligation to establish an account for you. We can decline to establish an account or cancel your account at anytime without notice or explanation.
3. No Obligation to Accept Instructions or Process Transactions - While we will always endeavour to comply with your Instructions as quickly as possible, there may be circumstances in which we are unable to do so. Therefore, we always reserve the right to refuse to accept your Instructions and to do so without giving you any reasons and without incurring any liability to you for any resultant loss or damages incurred by you or any other party.
1. Transaction: A Transaction can be placed either through our website or telephone. A Transaction is created once you give us your instructions in accordance with this paragraph 4 and 5.
2. Online Auto Confirmation - If you enter into an online transaction through our website, the Transaction will be legally binding on you as soon as we receive your electronic Instructions. We will provide you with confirmation of the Transaction Details on the screen and via email at the time you book the Transaction, but we will not provide you with any subsequent confirmation of any kind unless you request it.
3. Online Booking Confirmation - If you book a Transaction online that is not an Auto-Confirmation Transaction, we will attempt to contact you by telephone within 15 minutes on a "business day" and during "business hours" of your online booking to confirm the Transaction details. Outside of business hours we will contact you immediately the next business day. The Transaction will be legally binding on you at the conclusion of the telephone call. If we cannot contact you by telephone on the number you have given to us within 15 minutes, we reserve the right to cancel the booking and not enter into the Transaction.
4. Telephone Booking - If you book a Transaction by telephone, the Transaction will be legally binding at the conclusion of the telephone call. We will send you an email headed "Transaction Confirmation". If there is any discrepancy between the Transaction Confirmation and the details of the Transaction that have already been agreed in the telephone conversation, you must contact us within 24 hours of receipt of the Transaction Confirmation, failing which the Transaction details in the Transaction Confirmation will be deemed to be correct. We record all such telephone calls and in the event of any dispute, the transcript of our telephone conversation may be used as evidence as to the terms of the agreement that was entered into.
5. Cancellation - Once you enter a Transaction it is legally binding. We do not allow the cancellation of the transaction through our website. If you want to cancel the transaction before we receive your funds into our account, then a AUD $50 fee will be liable to be paid by you. To cancel the transaction you must contact us via the contact us information on our website. Once we have received your funds, you cannot cancel the transaction.
6. Late Payment - we reserve the right to cancel your transaction if we do not receive your funds within 1 business days of entering a transaction. An AUD $50 fee will be liable to be paid by you. We will either invoice you directly for this late payment fee or deduct it from your next transaction.
7. Out-of-Market Quotes - If we quote you a Rate that is clearly a mistake on our part ("Out-of-Market Quote") as the result of a technical or human error, it is not binding on us. You must notify us as soon as the mistake comes to your attention and we will requote the Rate as soon as possible
8. FX Rates - You acknowledge that exchange rates can fluctuate rapidly and that we constantly update our quoted FX Rates. There are the following different mechanisms for Rate calculations:
1. Normal and Priority Transactions: We will quote you a dealable Foreign Exchange ("FX") rate when you enter your transaction and receive a Transaction ID from us.
2. Urgent transactions have two mechanisms:
1. Indicative quote: we will quote an indicative rate at time you enter your transaction. Your rate will be confirmed at the time we transfer to your beneficiary’s bank account.
2. Fixed Rate: for smaller transactions we may quote a fixed rate at the time of transfer.
3. Pay a Bill: We will quote you a dealable Foreign Exchange ("FX") rate when you enter your transaction and receive a Transaction ID from us.
9. Urgent Transactions Beneficial Rate Movement: If the FX rate in between the time the Transaction is placed and when we receive your funds moves for you we will not pay you any of the difference.
10. FX Rate Source - we have sole responsibility to determine what FX rates will be used to determine any FX rate we display to you. Our FX rates will update in real time or any period we deem suitable.
11. Intermediary and Beneficiary Banking Fees and Charges: We may use third party suppliers and Intermediary and Beneficiary banks who may deduct fees from your transaction. Given the huge number of possible correspondent and beneficiary banks and their different charging methodologies, we are unable to advise you of the amount of these fees and charges at the time you entering the online transaction. It is your responsibility to contact your beneficiary’s bank to determine any fees and charges they may levy on your transaction.
12. Pay a Bill: We will pay your bill as per your instructions entered in the bill beneficiary on our system. This payment will occur within one week. Any rejected bill payments, will mean we charge you $AUD50 to reprocess to the correct bill beneficiary or refund your amount.
5. Payment to Us
1. Transaction Payments - You must initiate payment into our account, as per instructions on the Transaction Confirmation, of the full amount required to settle an Transaction on the day the Transaction becomes legally binding in accordance with paragraph 4. If we have not received the funds within 1 Business Days, we reserve the right to Cancel the Transaction in accordance with paragraph 7.
2. No Cash or Cheques or Cash Deposits into our bank account - You acknowledge that we do not accept cash or cheques or cash deposits into our bank account. You agree to make all payments to our account by electronic transfer and you acknowledge that we will transmit your funds by electronic means only. If you do deposit cash or cheque into our bank account we will return your funds with 5 business days. We reserve the right to charge a $100 AUD processing fee for returning the funds to you. You must also provide us with proof that you deposited the funds. This includes, but not limited to, a bank cash deposit receipt.
3. Beneficiary Account - You must provide us with full details of your Beneficiary Account, including the full name and address of the account holder and the full name and address of the Beneficiary Bank, on or before the date that we nominate. If you fail to do so, we reserve the right to Cancel the Transaction in accordance with paragraph 7.
4. Beneficiary Bank and Account Number - We will rely solely on the bank details and account number you give us for your Beneficiary and will not check to ensure that the beneficiary name provided by you matches the account number you have given us.
5. Full Amount - All payments must be received by us in cleared funds and for the full amount being transferred, including any transaction fees that may be payable and any service fees that have been requested by us or any third party, before we will credit your Beneficiary Account. In the event that we make a payment for you without having received the full amount, you acknowledge that we are not waiving our right to ask you for the full amount after the payment has been made to your beneficiary.
6. Funds Held by Us - You acknowledge and agree that we do not hold your funds on trust and will not put your funds into a separate bank account.
7. No Interest Paid - You acknowledge that we will not pay to you any interest on any funds held b
6. Misdirected Funds
1. Your Mistake - If your funds are sent to the wrong account or beneficiary or biller as the result of a mistake made by you, and we have acted in accordance with your Instructions, we will be under no obligation either to recover the funds or to resend the funds to the correct Beneficiary Account. You will need to book a new Transaction.
2. Our Mistake - If your funds are sent to the wrong account or beneficiary or biller as the result of a mistake made by us, we will take urgent action at our own expense to recover those funds, provided that you take immediate action to assist us to recover any such funds if the mistaken beneficiary is related to you or associated with you in some way
7. Transaction Cancellation:
1. We may refuse to perform your Transaction instructions or we may Cancel a Transaction or cancel all current Transactions or cancel your account that you have with us without notice to you:
1.1. if you fail to make any payment when it is due
1.2. if you fail to provide any material information we have requested or any information you have given us is or becomes, in our opinion, materially inaccurate or misleading;
1.3. in the event of your death or loss of mental capacity;
1.4. in the event that bankruptcy proceedings are commenced against you;
1.5. if the performance of our obligations under this Agreement become illegal;
1.6. if a serious dispute has arisen between us; or
1.7. if you breach an important term of this Agreement or of any Transaction. We are under no obligation to explain why we cancelled the account or cancelled the transaction
2. Consequences of Cancellation - To cancel a transaction in paragraph 7.1 we reserve the right to deduct a processing fee. The fee will be a minimum of AUD $100 to pay for any administration costs incurred.
3. No Payment of Profit - We will not pay you any profit arising from cancelling a Transaction in any circumstances.
4. Payment of Loss - You acknowledge that the amount of any loss realised on the cancelling of an Transaction is a debt payable by you and agree that we may immediately deduct the total amount of any loss (together with any expenses, premiums, commissions or other fees) from any funds we hold in relation to any Transaction. If the amount we are seeking to recover exceeds the amount of any Advance Payment or other funds held by us, you agree to pay the balance within 7 days of being notified by us of the total amount due.
5. Interest - You agree that we may charge you interest on any sum that remains payable to us after we Cancel any or all of your Transactions at a rate of 2% per annum over the cash rate target of the Reserve Bank of Australia (or of such monetary authority as may replace it). Interest will accrue and will be calculated daily and be compounded monthly from the date payment was due until the date full payment is made by you.
6. Default Notification - You must notify us immediately if you become aware of any event referred to in Clause 8.1 above.
7. Notice of Monies Due - If we Cancel a Transaction, we will send you a written statement explaining the amount of any sums that may be payable to us and the amount of any sums being withheld by us.
8. Anti-Money Laundering and Counter-Terrorism Financing ("AML/CTF")
1. AML/CTF Compliance - You undertake that you will not knowingly do anything to put us in breach of the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth) rules and other subordinate instruments (AML/CTF Laws). You undertake to notify us if you become aware of anything that would put us in breach of AML/CTF Laws.
2. Provision of Information - If requested, you undertake to provide additional information and assistance and comply with all reasonable requests to facilitate our compliance with AML/CTF Laws in Australia or an equivalent overseas jurisdiction.
3. No Grounds for Suspicion - You undertake that you are not aware and have no reason to suspect that:
3.1. the money you are transferring is derived from or related to money laundering, terrorism financing or any other criminal activities ("Illegal Activities"); and
3.2. the money you are transferring will be used to finance, or in connection with Illegal Activities.
4. Consent to Collection of Information by Us - We are subject to AML/CTF Laws. You consent to us disclosing in connection with AML/CTF Laws any of your Personal Information (as defined in the Privacy Act 1988 (Cth)) we may have.
5. Freezing or Blocking Transfer of Funds - In certain circumstances, we may be obliged to freeze or block an account where it is used in connection with Illegal Activities or suspected Illegal Activities. Freezing or blocking can arise as a result of the account monitoring that is required by AML/CTF Laws. If this occurs, we are not liable to you for any consequences or losses whatsoever and you agree to indemnify us if we are found liable to a third party in connection with the freezing or blocking of your account
6. Right to Refuse to Provide Our Service – If you fail to provide to us upon request any information that we are required under the AML/CTF Laws to collect from you, we retain the right, at any time, to refuse, in our sole discretion, to provide our service to you.
7. Sanctions List - if your name or your beneficiaries name appears on any Australian Government or other jurisdictions sanctions list we retain the right, at any time, to refuse, in our sole discretion, to provide our service to you.
8. Politically Exposed Person List - if your name or your beneficiaries name appears on any Australian Government or other jurisdictions Politically Exposed Persons list we retain the right, at any time, to refuse, in our sole discretion, to provide our service to you.
1. Disputes Policy - If you have a problem with our service, you should initially bring your complaint to our attention so that we can deal with it in accordance with our internal disputes policy. Our complaints officer will attempt to resolve the dispute to your satisfaction as quickly as possible.
2. Financial Ombudsman Service - If the dispute cannot be resolved under our internal disputes policy, you may then formally submit the dispute to the office of the Financial Ombudsman's Service ("FOS") for determination in accordance with its rules.
3. Arbitration - If your dispute does not fall within the rules of the FOS, you may submit the dispute to arbitration to be determined by the Arbitrators and Mediators of Australia Expedited Commercial Arbitration Rules, and to the extent permitted under those rules, the Arbitrator will be a person recommended by the New South Wales Chapter of the Institute of Arbitrators and Mediators of Australia. You agree to accept the determination of the arbitrator.
4. Legal Action - Nothing in this prevents either of us from approaching a court either for an urgent injunction or to appeal the decision of an arbitrator and nothing prevents us from taking immediate legal action to recover any amounts that you may owe us as the result of Cancelling an Transaction under paragraph 7
10. Limitation of Liability
1. No Liability for Delays - You acknowledge that delays in the transmission and receipt of payments may occur. In particular, you acknowledge that we operate an online dealing platform that could be subject to technical, or other, problems, the nature and duration of which may be beyond our control. Our service also involves the use of intermediaries who are outside our control. Accordingly, while we do everything in our power to ensure the timely transmission of funds, we cannot guarantee that transfers of funds will always be made on time and cannot accept any liability to you for any loss suffered by you as a result of any delays in the transmission of funds.
2. Liability Limited - We do not in any circumstances assume liability to you in excess of the amount of money you have actually paid to us in relation to any particular Transaction. We will not be liable to you for any form of consequential damages or loss that you may suffer as a result of:
2.1. delays in the transfer of your funds, or
2.2. our refusal at any time to transfer your funds.
Without in any way limiting the effect of this paragraph or any other paragraph of this agreement, "consequential damages" shall be taken to include damages arising from:
2.3. loss of business,
2.4. loss of opportunity to realise a gain as a result of foreign exchange fluctuations;
2.5. loss of any other opportunity, or
2.6. loss of interest on funds.
For the avoidance of doubt and without limiting any other provision of this Agreement:
1. if your funds are sent to the wrong account or otherwise fail to reach your Beneficiary Account as the result of a mistake made by us, we will credit your Beneficiary Account in the full amount of the funds you expect to receive (subject always to your obligations under clause 7.2), but that shall be the full extent of our liability to you;
2. if we Cancel or refuse to process one or more of your Transactions for any reason, we shall refund to you any funds that we hold on your behalf, but that shall be the full extent of our liability to you.
11. Warranties and Indemnities
1.1 you are over the age of 18;
1.2 you are the owner of the money you are seeking to transfer;
1.3 you are not acting on behalf of another person;
1.4 as a corporate you are incorporated and/or registered with the Australian Securities Investment Commission ("ASIC") and have full authority to enter into this Agreement and any Transaction/s;
1.5. you will inform us if you are acting as:
1.6. if you are acting as a trustee of a trust, you are properly authorised to enter into this Agreement and any Transactions in accordance with the terms of the relevant trust deed;
1.7. you have a valid commercial or personal reason for entering into each Transaction and will not enter into any Transaction for speculative purposes; and
1.8. in making your decision to enter into a Transaction, you will not rely on any market-related information that may be provided from time to time by us on our website or by our employees or consultants.
1. Collection of your Personal Information - You acknowledge that, in Transaction to provide our service to you, we must collect your personal information. If you refuse or fail to provide any requested information, we may not be able to process any Transaction/s for you.
2. Contact Us - If you have any questions about the collection and use of your personal information, you may contact our Compliance Officer at Tel. +66 97 221 8282 (Thailand) or +61 2 8046 6484 (Australia) ; through Line Official: @SmartwaySystem
3. Access to your Personal Information - You may obtain access to most personal information we hold about you by contacting our Compliance Officer. Sometimes there may be a reason why access will not be possible. If that is the case, you will be told why
4. Purpose of Collection - We collect your personal information in order to provide our products and services, satisfy our regulatory obligations under the AML/CTF legislation referred to in paragraph 10 and assess your credit worthiness.
5. Organisations who may receive your Information - We may provide your personal information to our intermediary bankers or payment providers and to any government regulatory bodies that normally require it or may request it. We may also provide your information to any partners, agents or intermediaries who are a necessary part of the provision of our products and services
6. International Intermediaries - You acknowledge and agree that we use international intermediaries to process Transactions on your behalf and that your personal information may be sent to those overseas intermediaries in order to complete the Transaction.
7. Use of Your Information - You agree that we may use any information we collect about you for the purposes of complying with our obligations under any AML/CTF Regulations and for any other purpose directly related to the provision of our services.
8. Information Correct and Up to Date - You must ensure that all information you give to us is accurate and up-to-date at all times. You must tell us if any of your personal details change as soon as practicable.
9. Protection of Information - We collect and store all information electronically and take all reasonable steps to protect information from unauthorised access, but we cannot accept liability for unauthorised access or use of your personal information.
10. Retention of Information - Any information collected by us, including telephone recordings or transcripts, may be kept or destroyed in accordance with our information retention policy.
11. Recording Phone Conversations - You consent to the electronic recording of all telephone conversations that take place between us without an automatic warning tone or warning message being given and you agree that we may use the recordings as evidence in any dispute or anticipated dispute between us.
12. Social Media data - you agree that we may download your social media data, as per the social media owners rules and regulations governing its Login API. This includes but is not limited to, your friends list, your profile information and associated photographs for use on our platform.
1. Notices - Where notice in writing is required under this agreement, it may be sent by fax, post or email. Proof of posting will be proof of receipt; in the case of facsimile or email on the day of dispatch, in the case of delivery by post 48 hours from the date of posting. Documents shall be sent to the last known postal address, email address or fax number you have given to us. If they change, you must notify us as soon as possible.
2. Modification of this Agreement - We may alter some of the terms of this agreement by posting the new terms on our website. This will not affect any rights or obligations you already have, but you will be bound by the new terms when you enter into subsequent Transactions.
3. Governing Law - This agreement shall be interpreted in accordance with the laws of New South Wales, Australia and you submit to the jurisdiction of the courts of New South Wales, Australia.