Smartway System Pty Ltd - Terms and Conditions

 

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 “Trading Name” Websites, Applications, or any other service channel. (“Service Channels”).

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 Service Channels Disclaimer. o Our Privacy Statement. o The disclaimers can be found on our Service Channels.

 

2.     Our Service

1.     Foreign Exchange Services - We hold an Australian Transaction and Reports and Analysis Centre ("AUSTRAC") License Number: 100520069, authorizing 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 Service Channels. 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 Service Channels.

1.2.  allow you to connect with our Service Channels 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 Service Channels.

2.     Account Setup and Cancellation - 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.

4.     In any cases we are unable to serve as your Instructions and you desire the returning of funds, we will facilitate such funds within 5 business days from the date we receive your request and funds.  

 

4.     Transaction

1.     Transaction: A Transaction can be placed through our Service Channels. 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 Service Channels, 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 through our Service Channels 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.     Cancellation – Once you enter a Transaction and we receive your payment instruction it is legally binding. You cannot cancel the transaction. In case that we refuse to provide our service as specified in clause 8.6 (AML/CFT), then a AUD $100 cancellation fee will be liable to be paid by you.

4.     In the events that we completely transferred the funds to a recipient as your desire, any events causing such funds back to your bank account, we have a right to contact you to return the funds to us. In any cases, you are unable to return we will enter into legal process for exercising our rights.  

5.     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.

6.     FX Rates - You acknowledge that exchange rates can fluctuate rapidly and that we constantly update our quoted FX Rates. For Transactions: We will quote you a dealable Foreign Exchange ("FX") rate when you enter your transaction and receive a Transaction ID from us.

7.     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.

8.     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.

9.     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 are 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.

 

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 a Transaction on the day the Transaction becomes legally binding in accordance with paragraph 4. If we have not received the funds within time specified by us, 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 within 5 business days from the receiving date with a AUD $20 for processing fee of the returning. 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, including additional information of fund transfer in accordance with regulations of related regulators 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 by us.

 

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 we have liability to return your funds as the conditions set forth herein;

1.3.  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;

1.4.  in the event of your death or loss of mental capacity;

1.5.  in the event that bankruptcy proceedings are commenced against you;

1.6.  if the performance of our obligations under this Agreement become illegal;

1.7.  if a serious dispute has arisen between us; or

1.8.  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. Unless this agreement constitutes any specific rights and obligations between you and us for the aforementioned events, we will return your funds deducted with fees and operation cost within 5 business days from the date we found such events.

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 a 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 7.1 above.

7.     Notice of Monies Due - If we Cancel a Transaction, we will send you a       statement explaining the amount of any sums that may be payable to us and the amount of any sums being withheld by us via your email.

 

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. In such case, any transactions will be cancelled as specified in clause 7: Transaction Cancellation.

7.     Sanctions List - if your name or your beneficiaries name appears on any Australian Government or other jurisdictions sanctions lists, 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 lists, we retain the right, at any time, to refuse, in our sole discretion, to provide our service to you.

 

9.     Disputes

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 a 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:

o   loss of business,

o   loss of opportunity to realise a gain as a result of foreign exchange fluctuations;

o   loss of any other opportunity, or

o   loss of interest on funds.

3.     For the avoidance of doubt and without limiting any other provision of this Agreement:

3.1.  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;

3.2.  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.

3.3.  You acknowledge and accept that we or our directors, employees, or subsidiaries have no liabilities upon using our services, including but not limited to, any damages, losses, or costs, direct or indirect, intentional or accidental, occurred from inability of using our services, failures, errors, halts, incompletes, viruses, malwares, etc.

 

11.  Warranties and Indemnities

1.     Your Warranties - You agree that the following statements are true and accurate, and you acknowledge that we may refuse to process, or Cancel a Transaction if we find at any stage that they are not true and accurate:

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:

o   a sole proprietor of a business; or

o   a trustee of a trust; or

o   a partner of a partnership; or

o   an agent; or

o   a corporate trustee of a trust.

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 Service Channels or by our employees or consultants.

2.     Your Indemnity - You agree to indemnify us for any costs, expenses or fees we may incur as a result of your failure to perform your obligations under this Agreement, whether they arise under paragraph 7 or in some other way. This includes any legal costs that we may incur in Transaction to enforce our rights or recover any amounts you owe us. You also agree to indemnify us for any fees, costs, duties and taxes charged by third parties in relation to the Transactions you enter into, including fees charged by your beneficiary bank, whether or not those fees or charges were notified to you in advance.

3.     Our Indemnity - In accordance with clause 6.2 of this Agreement, if your funds are sent to the wrong account as the result of a mistake made by us, we will indemnify you and keep you indemnified in relation to the to recovery of those funds and will take urgent action at our own expense to recover the 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.

 

12.  Privacy

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 +61 2 8755 2628; through Line Official: @SmartwaySystem or Email: support@smartwaysystem.com.au

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.     Organizations 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.

 

13.  General

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 Service Channels. 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.

 

14.  Definitions

-               Agent Appointment Form means a form that we will give you to enable you to appoint somebody else to transact with us on your behalf.

-               AML/CTF Laws means the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth), and other rules and other subordinate instruments.

-               Authorised Representative means an individual who is a director or officer authorised to execute this Agreement or an Authorised Signatory.

-               Authorised Signatory means an individual appointed and authorised by you to provide Instructions to us on your behalf.

-               Auto-Confirm Transaction means a Transaction that has been booked online and has been processed by us automatically with no telephone call or other communication being entered into.

-               Beneficiary Account means the account to which you are sending your funds.

-               Beneficiary Bank means the bank which credits your funds to your beneficiaries account.

-               Business Day means a day that is not a Saturday, a Sunday, or a public holiday in the State where the bank and/or entity that we made contact in connection with such facilitation is located.

-               Business Hours means 12pm until 9pm each business day Australian Eastern Standard Time.

-               Cancel means cancelling a Transaction in the circumstances set out in Clause 8 or otherwise pursuant to this Agreement.

-               Corporate means you are incorporated and/or registered in Australia with the Australian Securities and Investments Commission ("ASIC") with an Australian Business Number ("ABN") and/or Australian Companies Number ("ACN") and/or an Australian Registered Bodies Number ("ABN").

-               Delivery Date means the date we have requested that you deliver your funds to our nominated account for transmission.

-               Illegal Activities means any activities which are in contravention to any Australian or other jurisdiction legislation. In particular the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth), and other rules and other subordinate instruments ("AML/CTF Laws").

-               Insolvency Event means:

o   a meeting has been convened, resolution proposed, petition presented or order made for the winding up of the company;

o   a receiver, receiver and manager, provisional liquidator, liquidator or other officer of the court has been appointed in relation to the company or all or any asset the company;

o   a mortgagee or chargee has taken, attempted or indicated an intention to exercise its rights under any security under which the company is the mortgagor or chargor;

o   the company has become insolvent within the meaning of section 95A of the Corporations Act 2001 (Cth);

o   the company has stopped paying its debts as and when they fall due; or

o   the company is subject to voluntary administration under Part 5.3A of the Corporations Act 2001 (Cth).

-               Instructions means a request made by you to enter into a Transaction and shall be taken to include any information, communications or documents incidental to or relating to a Transaction whether we process the Transaction or not.

-               Intermediary Banks means a bank which transfers your funds from our bank to your beneficiaries bank.

-               Payment means payment by you to us of funds for transmission.

-               Rate means the foreign currency exchange rate that we quote you for a Transaction.

-               Retail Client has the meaning given in s761G of the Corporations Act 2001 (Cth).

-               Transaction Confirmation means the notification we send you confirming the details of the Transaction you have entered into with us.

-               Transaction means an instruction you have given us via our Service Channels to transmit your money to your beneficiary.

-               Social Media means platforms and user authentication logons provided by "Facebook?", or "Google +?"

-               Trading Names means Trading Names owned by us and registered with the Australian Securities Investment Commission. These include by not limited to:

o   Smartway System

-               Service Channels means our Websites, Application, or any other service channels owned by us.

-               Websites means any websites owned by us including but not limited to:

o   www.smartwaysystem.com.au

-               Application means any application owned by us including but not limited to:

o   Smartway System Application