1. APPLICABILITY OF CLAUSES
You acknowledge the terms of this agreement govern the products Butn X, Butn Pay, and Butn Now, and that unless expressly stated otherwise apply to you.
2.1. HOW TO MAKE A REQUEST
(a). A Request may be made via an Aggregator portal or the Butn Portal.
(b). Each Request must be accompanied by the Supporting Documents, and any other information or documentation we may reasonably require.
(c). Each time you submit a Butn X Request, you acknowledge that the Supporting Documents must have a due date.
(d). Each time you submit a Butn Pay Request, you agree to select the number of Instalments.
(e). Each time you submit a Butn Now Request, you agree:
(i). to provide an irrevocable direction to the relevant Third Party to pay us the Transaction Amount (where applicable).
(ii). to execute any further document and/or do anything reasonably necessary to give further effect to the irrevocable direction.
(iii). this clause 2.1(e) shall constitute full and sufficient authority to direct payment of your obligations and liabilities to us, and you acknowledge that the authority and instruction to pay pursuant to this clause cannot be revoked without our prior written consent, and we may disclose this Agreement to a Third Party as evidence of your irrevocable direction to pay.
3. APPROVAL AND PAYMENT
3.1. PRE-CONDITION TO APPROVAL
(a). Before we consider any Request, you must have notified us of your Nominated Account. You must ensure that direct debit is available from your Nominated Account.
3.2. APPROVAL OF REQUEST
(a). We may in our absolute discretion:
(i). approve or reject your Request;
(ii). conditionally approve your Request, and
(iii). require you to submit further Supporting Documents or any other information or documentation we may reasonably require.
(b). If your Request is approved (where relevant):
(i). we will email you and confirm:
A. our approval of your Request;
B. the Payment Amount;
C. details of any outstanding money owed by you;
D. the Payment Date; and
E. the Payment Schedule.
(ii). You acknowledge and agree that:
A. With respect of Butn X and Butn Now, we may deduct from the Payment Amount any monies owing by you to us under this Agreement; and
B. you shall become liable to us for the Payment Amount and all fees incurred in accordance with this Agreement.
3.3. REJECTION OF REQUEST
If your Request is rejected, you acknowledge that you have no right to make a Claim against us or any Related Person or Entity of ours with respect of any Loss or Liability that you, or a Related Person or Entity may suffer as a result of our rejection of your Request.
4.1. Subject to clauses 3.2(b)(ii) and 4.2, we will transfer the Payment Amount on Settlement to your Nominated Bank Account or as directed by you (in the case of making payment to a Supplier).
4.2. Where payment is to be made to a Supplier, you must provide us with written:
(a). confirmation that you received the goods and/or services from the Supplier; and
(b). authority to pay the Supplier.
5.1. YOUR OBLIGATION TO REPAY
(a). You may not make any set-off, deduction or counterclaim from any monies that you owe us.
(b). Any money paid by you or debited from your Nominated Account are deemed received by us when they clear in our bank account.
5.2. BUTN X REPAYMENT
In respect of BUTN X:
(a). You and each Guarantor agree and acknowledge that the Transaction Amount must be paid to us, in full, on or before the Payment Date; and
(b). You consent to our NDDP debiting your Nominated Account any time after the Payment Date for the Transaction Amount or any part thereof that remains outstanding.
5.3. BUTN PAY REPAYMENT
In respect of BUTN Pay:
(a). You and each Guarantor acknowledge and agree that from Settlement:
(i). You shall be liable to us for the Transaction Amount, payable by way of Instalment; and
(ii). You will make each Instalment payment on each Payment Date.
5.4. BUTN NOW REPAYMENT
In respect of BUTN Now:
(a). You and each Guarantor acknowledge and agree that the Transaction Amount must be paid to us in full on or before the Payment Date, and You (and/or each Guarantor) must immediately on demand pay to us the Transaction Amount or any part thereof that remains outstanding on the Payment Date, and where:
(i). any part of your Application is found to be false, inaccurate or misrepresented;
(ii). you have knowingly or dishonestly altered, amended or otherwise dealt with the Supporting Documents;
(iii). Without limiting clause 5.4(a)(ii), you have breached any warranty of this Agreement;
(b). You and/or each Guarantor must immediately on demand pay us the full value of any Discount where the Transaction Amount is not paid to us in full on or before the Payment Date;
(c). should you be liable to us for the Transaction Amount (or any part thereof) or the Discount, you authorise us, or our NDDP to debit the Transaction Amount or any part that remains outstanding and/or Discount from your Nominated Account; and
(d). if you receive any part of the Transaction Amount, you acknowledge and agree that you:
(i). hold said money in trust for us; and
(ii). must immediately pay said money to us.
5.5. APPLICATION OF REPAYMENT FUNDS
Unless we determine otherwise, you acknowledge that any money received from you will be applied as follows:
(a). payment of any Fees;
(b). payment of any GST;
(c). payment of any costs for which you have indemnified us;
(d). repayment of a Transaction Amount (applied to the oldest debts first).
6.1. You acknowledge and agree that we shall be entitled to, and you shall be liable for, the following fees and you consent for such fees to be direct debited from your Nominated Account, at any time, by our NDDP (where applicable):
(a). BUTN FEE
You will be charged a fee relating to the funding of a transaction by Butn known as the Butn Fee. This fee, as set out by the Aggregator will be relative to the duration and type of transaction being funded. The Butn fee is a fixed fee for the transaction duration as set out at funding date.
(b). EXTENSION FEE
Extension Fees shall be applied to all monies that remain unpaid, from the Payment Date.
(c). ESTABLISHMENT FEE
You agree and consent to pay an Establishment Fee, which will be applied to your first Transaction Amount.
6.2. The fees are located in the Schedule of Fees (Clause 27).
7. GUARANTEE AND INDEMNITY
7.1. In consideration of us entering into this Agreement with you and subject to clause 7.2 and clause 7.3, each Guarantor jointly, severally, unconditionally and irrevocably:
(a). guarantees to us the due payment of all money payable by you and the due performance and observance by you of the terms in this Agreement; and
(b). indemnifies and keeps indemnified us from and against all Claims, Loss and Liability which we suffer or incur due to or arising directly or indirectly out of any breach or non-observance by you of any of the terms of this Agreement or out of the inaccuracy of a representation or warranty under this Agreement or any Insurance Excess or Short Fall arising out of or in connection to an Insurance Claim pursuant to this clause 7.
7.2. In the event that you have entered into this Agreement for either a Butn X or Butn Pay Product and you or the Guarantor fail to perform any obligation in accordance with this agreement, then you acknowledge that we may, at any time and in our absolute discretion:
(a). make a claim to our Nominated Insurer to recover the Transaction Amount (or any part thereof that remains outstanding) (Insurance Claim); and/or
(b). enforce the guarantee set out in clause 7.1(a) against each Guarantor, and require the performance of such obligation as if the Guarantor were the principal obligors in respect of that obligation.
7.3. Where we file an Insurance Claim and the Nominated Insurer elects to:
(a). not honour the relevant Insurance Claim, then you and each Guarantor agree that you shall be liable for the Transaction Amount in full, or
(b). honour (in whole or in part) the relevant Insurance Claim, then you and each Guarantor shall be liable for the Insurance if any) and any Short Fall.
7.4. We may make a demand pursuant to this clause 7 without first being required to take any action against you or any other person or enforce a charge or security interest that we may hold in relation to that obligation, and you shall pay us within 14 days of any demand thereof.
7.5. The Guarantor acknowledges and agrees their liability:
(a). will not be affected by:
(i). the termination of this Agreement;
(ii). any permitted assignment of this Agreement;
(iii). the compounding, compromise, release, abandonment, waiver or variation of any of our rights against you;
(iv). our neglect or omission to enforce our rights against you;
(v). our failure to register, or register correctly any Security Interest or a Security Interest not obtaining any contemplated priority;
(vi). this Agreement or any other document being varied or replaced in any way;
(vii). us doing an action or failing to do an action which could affect the Guarantor’s liability or anything else that apart from this clause could result in the Guarantor’s obligations ending or being affected;
(viii). not enforcing on a party to this Agreement other than a Guarantor;
(ix). by the death;
(x). notice of cancellation by the Guarantor,
(b). continues and remains in full force and effect until the due performance, observance and fulfillment of all the terms of this Agreement.
7.6. Each Guarantor irrevocably waives, and must not exercise, any right of indemnity or subrogation that they otherwise might be entitled to claim and enforce against, or in respect of us.
7.7. Without limiting the foregoing, each Guarantor must not:
(a). share in any guarantee, encumbrance or money received or receivable by us in relation to the guaranteed obligations, or stand in our place in relation to any such guarantee, encumbrance or right to receive money;
(b). take any step to enforce a right or claim against you relating to any money paid to us by any Guarantor under this Agreement;
(c). exercise, or purport to exercise, any rights as surety in competition with us;
(d). receive, claim or have the benefit of any payment (including a payment under a guarantee), distribution or encumbrance from or on account of you or any other person;
(e). reduce, or attempt to reduce their liability under this Agreement, raise a defence, set-off or counterclaim available to them, you or a co-surety or co-indemnifier against us; or
(f). claim to be entitled by way of contribution, indemnity, subrogation, marshalling or otherwise to the benefit of any agreement or document to which we are a party.
7.8. We are under no obligation to marshal or appropriate in favour of any Guarantor, or to exercise, apply, perfect or recover, any encumbrance that we hold at any time or any funds or property that we may be entitled to receive or claim.
7.9. If you are the subject of an Insolvency Event, the Guarantors irrevocably authorise us to:
(a). prove all money that a Guarantor is liable to pay under this Agreement; and
(b). retain and carry a suspense account, and appropriate, at our discretion, any dividends or other money received in relation to your obligations under this Agreement,
until your obligations under this Agreement have been irrevocably performed in full.
7.10. If an Insolvency Event has occurred in relation to you or any Guarantor, any amount paid by the you or the Guarantor (as the case may be) within the preceding six (6) months (Relevant Payment) will only be applied against guaranteed obligations, if:
(a). we form the opinion in good faith (which will be conclusively binding on each Guarantor) that we will not be required to pay all or any part of the Relevant Payment to any person under any law relating to bankruptcy, winding up or the protection of creditors; or
(b). a final judgment is given by a court of competent jurisdiction in our favour that we are not required to pay all or part of the Relevant Payment to any person under any law relating to bankruptcy, winding up or the protection of creditors.
7.11. If an amount is applied against any guaranteed obligations and we form the opinion in good faith that we are obliged to pay all or part of the Relevant Payment to any person under any law relating to bankruptcy, winding up or the protection of creditors:
(a). our rights are to be reinstated and will be the same in relation to that amount as if the application, or the payment or transaction giving rise to it, had not been made; and
(b). the Guarantors must immediately do anything (including executing any documents) required by us to restore to us any guarantee or encumbrance to which we were entitled immediately before that application or the payment or transaction giving rise to it,
and any discharge or release between us and the Guarantors is subject to reinstatement of the rights of the benefitting party under this clause.
8. CONSUMER RIGHTS AND WARRANTIES
8.1. You may have certain consumer rights and the benefit of certain consumer warranties and guarantees pursuant to Australian legislation, including but not limited to the ACL.
8.2. Except as required by the ACL, we do not provide any express warranties or guarantees with respect of any goods or services, including but not limited to goods being of an acceptable quality of fit for any declared purpose or that services will be performed with due care and skill, within a reasonable time or that the services will be fit for a particular purpose.
9.1. This clause 9 only applies to Butn Pay.
9.2. You agree and acknowledge that:
(a). any refund you seek with respect of a good or service will be made directly to a Supplier and will be in accordance with their returns policy (if any) or any applicable law;
(b). we are entitled to continue to automatically debit your Nominated Account and you remain liable to us for all outstanding payments in accordance with the Payment Schedule until we are notified by the Supplier that the refund request has been accepted and the Supplier has refunded to us the Payment Amount. The Payment Amount is not refunded until it has cleared in our bank account.
9.3. On receipt of a refund for the full Payment Amount by the Supplier (and same clearing in our account), we will issue a refund to you for any payment made by you in accordance with the relevant Payment Schedule, less the Butn Fee.
9.4. If there remains any part of the Transaction Amount outstanding (Refund Shortfall) after applying the refund from the Supplier and any payment made by you to us, then you agree:
(a). you remain liable for the Shortfall; and
(b). and consent to pay us the Refund Shortfall in equal Instalments in accordance with the Payment Schedule.
9.5. If after applying any refund issued by the Supplier and any payment(s) made by you to us, there remains a surplus of funds (Surplus), then we agree to refund the Surplus to your Nominated Account.
9.6. If you are entitled to any Surplus, you expressly authorise us to deduct any monies that are due and payable by you from the Surplus.
10. OWNERSHIP OF INTELLECTUAL PROPERTY
You, and each Guarantor acknowledge and agree that:
(a). we, or our Related Person or Entity own all Intellectual Property with respect of the Product;
(b). You will not copy, imitate, modify, alter, amend or seek to reverse engineer the Product or any source code with respect of the Product.
11. GOODS AND SERVICES TAX
11.1. Expressions that are not defined but are capitalised shall have the same meaning as stated in the GST Law.
11.2. Unless expressly stated otherwise, any sum payable, or amount used in the calculation of a sum payable, in this Agreement has been determined without regard to GST and must be increased by any GST payable.
11.3. If GST is imposed on any supply made under or in accordance with this Agreement, the recipient of the supply (Receiving Party) must pay the supplier (Supplying Party) an additional amount equal to the GST payable on the supply. Any payment shall be subject to the Receiving Party receiving a valid tax invoice, or a document that the commissioner will treat as a tax invoice, in respect of the supply at or before the time of payment. Payment of the additional amount will be made at the same time and in the same manner as payment for the supply is required to be made in accordance with this Agreement.
12. RELIANCE ON AND OF WARRANTIES, UNDERTAKINGS AND INDEMNITIE
You and each Guarantor acknowledge and agree that we have entered into this Agreement with you in reliance on and on the basis of the warranties, undertakings and indemnities set out in this Agreement, and that but for these warranties, undertakings and indemnities we would not have entered into this Agreement or paid you any monies.
13.1. GENERAL WARRANTIES
(a). You, and each Guarantor warrant:
(i). if you are a company, you warrant:
A. You are duly incorporated; and
B. Any information you have disclosed to us about the company and its directors is true and correct;
(ii). if you are an individual, you warrant that your date of birth and any other details provided by you, including those contained in you drivers licence, are true and correct;
(iii). you do not act as the trustee of any trust, except a trust which has been disclosed in writing to us;
(iv). all information provided to us in support of your Application and each Request is true and accurate;
(v). with respect to Supporting Documents:
A. you have not altered, modified or otherwise dealt with the Supporting Documents; and
B. the Supporting Documents are true and correct in all material respects;
(vi). you have no:
A. outstanding judgments or court orders in any Australian jurisdiction;
B. current (or threatened) proceedings in any court or tribunal against you in any Australian jurisdiction, including but not limited to a creditors petition or an application for a wind-up order;
(vii). there are no investigations against you by any relevant governing or regulatory body including but not limited to fraud, dishonest conduct, negligence, wilful negligence, unsatisfactory conduct, unprofessional conduct or practice, breach of any conditions relevant to any licence that you may hold or are required to hold to operate your business;
(viii). you have entered into this Agreement solely for business or investment purposes and that those investment purposes do not include the purchase, renovation or improvement of residential property or investment in marketable securities;
(b). You make each warranty set out in this clause 13.1 each time you submit a Request.
13.2. WARRANTIES WITH RESPECT OF DEBTS
(a). This clause 13.2 is only applicable to Butn X.
(b). You warrant that in respect of each Debt:
(i). the contract or agreement entered into between you and the Debtor giving rise to the Debt fulfills all statutory and regulatory requirements for its validity and enforceability (Contract);
(ii). the Debt is a bona fide debt owed to you by the Debtor;
(iii). you have not assigned or offered to assign the Debt to any other person or third party;
(iv). you and/or the Debtor are not in breach of the Contract;
(v). the Debtor is not entitled to rescind the Contract;
(vi). the Debtor has not raised a dispute as to its liability to pay the Debt or any part of it;
(vii). the Debtor is not entitled to claim or enforce any counter-claim, set-off, defence or other equity in respect of the Contract or the Debt;
(viii). you will not rescind or terminate the Contract with the Debtor before the Transaction Amount is repaid to us;
(ix). unless approved by us in writing, you have not agreed to grant the Debtor an extension of the time for payment of the Debt, or waive or modify the obligation to pay the Debt;
(x). you have not and will not adjust the net value of a Debt including but not limited to providing a Discount, a compromise, set-off or discharge a Debt without first obtaining our consent in writing;
(xi). where a Supporting Document is an invoice, it is the same in all respects as provided to you by the Debtor;
(xii). the Debt has arisen in the ordinary course of business and your usual terms and conditions of trading as disclosed to us apply to the Debt;
(xiii). to the best of your knowledge, whether actual or constructive, the Debtor is solvent and has not made any arrangement for the benefit of its creditors generally.
(c). You further warrant that you are not a director, officer, employee or shareholder (whether beneficially or otherwise) of the Debtor.
(d). You must not do or allow anything to be done which could prevent the Transaction Amount being paid to us in full.
(e). You make the warranties in this clause 13.2 each time you submit a Butn X Request.
13.3. WARRANTIES WITH RESPECT OF TRUSTS
(a). If you or a Guarantor is a trustee of a trust, you and each Guarantor warrant that:
(i). your arrangements with us are for the benefit of the beneficiaries of the trust and will be binding on those beneficiaries;
(ii). you are validly appointed as the sole trustee of the trust, are not at the time of entering this agreement in breach of your obligations as trustee and no circumstances exist by which you may be removed;
(iii). you have authority to enter into this Agreement and you enter into this Agreement in the proper performance of your duties as the trustee, and all formalities required by the trust deed in connection with this Agreement have been complied with;
(iv). you have the right to be fully indemnified out of the trust assets for obligations incurred under this Agreement and we will be subrogated to your right of recoupment out of the trust assets;
(v). the trust is validly created and no circumstances exist by which it may be determined, and no action has been taken or proposed to terminate the trust and you will ensure no action of that type is taken;
(vi). you provided us with a copy of the trust deed and any document relating to the establishment of the trust or the power of the trustee and the terms of the trust;
(vii). you have not delegated any of your powers as trustee or exercised any power of appointment;
(viii). the trust is the legal owner of all the assets in name of the trust;
(ix). there is no dispute between you and any other person in relation to the trust or the trust assets; and
(x). you are empowered to carry on its business as conducted now or contemplated and to own, in your capacity as trustee, property and assets and there is no restriction or condition upon such activity by you.
(b). You must tell us if anything occurs that affects your (and/or any Guarantors) ability to truthfully repeat each of the above warranties. Neither you nor the Guarantors may do anything nor permit anything to be done which could cause a warranty to be untrue or which could mean that you could not truthfully repeat a warranty.
(c). You and the Guarantors each acknowledges that you are bound by this Agreement both in your own right and as the trustee of each trust (including any trust specified in this Agreement) of which it is the trustee. These requirements are not affected by an ABN or a trust not being specifically identified in this Agreement.
14.1. UNDERTAKINGS AS TO RECORDS
(a). You and each Guarantor agree that you will:
(i). keep all records required by law;
(ii). within thirty (30) days of a request from us, forward us your monthly accounts including a balance sheet and profit and loss statement;
(iii). prepare and deliver at your expense, copies of your records, accounts and books as we may require, from time to time, including but not limited to statements of any accounts with any Australian Bank;
(iv). Butn X:
A. if you have an outstanding payment with respect of a Transaction Amount, within seven (7) days of a request from us, forward to us an open item aged debtors’ analysis and/or copies of any Debtor Statements.
15. INFORMATION TO BE GIVEN TO US
15.1. INFORMATION WHICH YOU MUST PROVIDE
(a). You must advise us immediately, in writing, on the happening of any of the following:
(i). the happening of an Event of Default;
(ii). where you are a company, any alteration to the shareholding or officers of you, and any alteration to the shareholding or officers of a company shareholder;
(iii). a person or entity attempting to enforce a Security Interest provided by you;
(iv). where you are unable to comply with any warranty set out in clause 13.
16.1. You, and each Guarantor agree to, during the currency of and post-termination of this Agreement, indemnify us and keep us indemnified against:
(a). any liability or loss we suffer as a result of:
(i). your or any Guarantor’s failure to perform any obligation under this Agreement;
(ii). the inaccuracy of a representation or warranty under this Agreement; or
(b). the exercise or attempted exercise by us of a right, power or remedy under this Agreement;
(c). all reasonably incurred costs and fees (including commissions, legal fees and court costs) incurred and/or expended by us in taking or authorising any collection action or initiating legal process for the enforcement of our rights under this Agreement;
(d). any duty payable or incurred by us:
(i). in connection to this Agreement;
(ii). on the receipt or deemed receipt of any moneys by us; or
(iii). as a consequence of the provisions of this Agreement or any transaction under or in consequence of this Agreement.
17. ANTI-MONEY LAUNDERING AND COUNTER-TERRORISM LAW AND PRIVACY
17.1. You and each Guarantor warrant to us that you are not aware, and have no reason to suspect, any financial accommodation provided under this Agreement or the performance of any transactions contemplated by this Agreement will be applied or related to any money laundering, terrorism financing or similar illegal activity under any applicable law or otherwise prohibited under any international convention or agreement, including but not limited to the AML/CTF.
17.2. You and each Guarantor must immediately notify us, in writing, if anything occurs that does not permit you to truthfully repeat this warranty.
17.3. You and each Guarantor consent and agree that we are entitled to disclose any information we have obtained about you or any Guarantors to any third party, if we reasonably believe, or are otherwise required to do so pursuant to the AML/CTF.
17.4. You and each Guarantor must give us all additional information and render all necessary assistance we reasonably require to comply with all applicable laws, conventions and agreements, including the AML/CTF.
17.5. If we are concerned (in our absolute discretion) that a payment or transaction is likely to breach any applicable law, convention or agreement, then we reserve the right to, without penalty or liability to you, delay or refuse to make a payment and/or delay or prevent the occurrence of any transaction.
17.6. You agree and acknowledge that:
(a). we may collect, use, disclose and store your Personal Information, directly from you, from a third party or other parties and you consent to our collection, use, disclosure and storage of same.
(c). For the avoidance of doubt, all Personal Information collected, used, disclosed and stored by us will be in accordance with the Privacy Act.
18. CHARGING PROVISION
18.1. To secure the punctual performance of any and all of your obligations to us pursuant to this Agreement or any other agreement, arrangement or understanding between us, including your payment to us of all monies that you owe to us in accordance with this Agreement, you and each Guarantor charge, in favour of us, all your right, title and interest in all your present and after acquired property (including real property, whether freehold or leasehold).
18.2. The charge granted by clause 18.1 creates a caveatable interest and grants us the right to lodge and maintain a caveat over any real property presently owned or future acquired by you and each Guarantor.
18.3. This charge shall not be discharged until all monies which you owe us pursuant to this Agreement.
18.4. For the avoidance of doubt, you and each Guarantor must, on request by us, provide written consent to any caveat which we propose to lodge over any real property, including but not limited to a Form 18 – General Consent (or any variation of the form).
19. SECURITY INTERESTS AND THE PPSR
19.1. PPSA DEFINITIONS
Each capitalised term in this clause shall have the meaning ascribed to the term by the PPSA, except where context requires that meaning not be given.
19.2. GRANT OF SECURITY INTEREST
(a). You grant us a Security Interest in the Collateral to secure your payment to us of all monies that you owe to us in accordance with this Agreement and the punctual performance of all of your obligations to us at any time pursuant to this Agreement, any other agreement, arrangement or understanding between you and us.
(b). You agree and acknowledge that we may:
(i). rely on this clause as your consent to grant us the Security Interest in the Collateral and we are not required to obtain further evidence of your consent; and
(ii). in our absolute discretion as to whether we register our Security Interest on the PPSR.
(c). You acknowledge and confirm that:
(i). we have given value for our Security Interest in the Collateral;
(ii). nothing in this Agreement is intended as an agreement that a Security Interest under this document attaches at a later time than the time specified in s19(2) of the PPSA;
(iii). you have not made any other agreement with us to vary the time of attachment of a Security Interest except in any express written agreement between the you and us.
(d). The Parties acknowledge that our Security Interest has the same priority in relation to all monies that you owe us, including future advances and future indebtedness.
(e). If you dispose of or otherwise deal with or agree to deal with the Collateral in breach of this Agreement, you acknowledge that:
(i). we have not authorised the disposal, dealing, agreement to deal, or agreed that any disposal, dealing or agreement to deal will extinguish our Security Interest; and
(ii). our Security Interest continues in the Collateral Amount despite the disposal or dealing or agreement to deal.
(f). You must not do or agree to do any of the following in relation to the without our prior written consent:
(i). sell, assign or dispose of the Collateral;
(ii). give control of the Collateral to any third party;
(iii). deal in any other way with the Collateral.
(g). In addition to any right provided by law, at any time after the occurrence of an Event of Default:
(i). each Security Interest arising under this Agreement becomes immediately enforceable;
(ii). we may, in your name or otherwise, at any time, do anything that you, or if you are a corporation or a trust, your directors or trustee (as the case may be), could do in relation to the Collateral;
(iii). we have all other rights conferred by law in relation to the; and
(iv). we may appoint one of more Receiver and may do any action a Receiver may do at law.
(h). You must, immediately upon request, execute and do any and all things reasonably necessary to give full effect to this clause granting us a Security Interest in the Collateral.
(i). You must give us all information necessary for us to register and maintain a legally effective financing statement in respect of the Security Interests created by this Agreement and. You authorise us to file all financing statements, financing change statements and other documents and to do all things which we consider appropriate to perfect and maintain our Security Interest, to protect and preserve the Collateral and to realise our Security Interests.
19.3. GENERAL PPSA PROVISIONS
(a). To the extent that a Security Interest (as defined in the PPSA) is created in relation to your obligations under this Agreement:
(i). unless notice is required pursuant to the PPSA, we need not give any notice under the PPSA (including a notice of a verification statement) in relation to that Security Interest and the giving of it cannot be excluded;
(ii). you waive your right to receive from us any information of the kind referred to in s275 of the PPSA and shall not make any request of us under that section;
(iii). you will only authorise the disclosure of information under s275(7)(c) of the PPSA with our prior written consent;
(iv). you authorise and request us under s275(7)(c) of the PPSA to obtain from the holder of any other Security Interest over any of your assets any of the information referred to in s275(1) of the PPSA;
(v). nothing in this Agreement should be construed as an agreement by us to subordinate our Security Interest in the Collateral, the Account and/or any Payment Amount; and
(vi). the parties agree to contract out of:
A. each provision of the PPSA that s115 thereof permits (excluding sections 117, 118, 123, 126, 128, 129, 134(1) and 135 thereof); and
B. sections 117, 118, 123, 126, 128, 129, 134(1) and 135 thereof, to the extent that a provision in any of those sections would be contrary to, or limit, an express or implied right of ours provided for in this Agreement.
(b). If any rights, powers and remedies are available to us under Chapter 4 of the PPSA, those rights, powers and remedies do not derogate from any right, power and remedy available under this Agreement, any other document or any law.
(c). We may require you to perfect and register a Security Interest in respect of the Collateral and/or any Payment Amount. You irrevocably appoint us as your agent for the purposes of registering any such Security Interest.
20. EVENTS OF DEFAULT
20.1. EVENTS OF DEFAULT:
(a). An Event of Default occurs if:
(i). you default in the due performance or observance of your obligations in this Agreement including payment of any monies payable;
(ii). a representation or warranty that you have given us under this Agreement is not true or is misleading in any material respect;
(iii). an Insolvency Event occurs in relation to you or a Guarantor;
(iv). a Security Interest you have provided becomes enforceable or is enforced;
(v). you cease or threaten to cease to carry on your business or a substantial part thereof;
(vi). all or any part of this Agreement becomes void, illegal, invalid, unenforceable or of limited force and effect or is claimed to be so by you;
(vii). where you are a company, there is a material change in the legal or beneficial ownership or actual or effective control of you that is not acceptable to us in our absolute discretion;
(viii). the Security Interest created by this Agreement ceases to have the priority which purports to have under this Agreement or ceases to secure the payment of the moneys or the performance of the obligations which it purports to secure, other than by any act of us;
(ix). any event or series of events, whether related or not, occurs which has, in our opinion, a Material Adverse Effect;
(x). you instruct our NDDP to stop or defer a payment which you owe us, terminate your direct debit service agreement with our NDDP whether by notifying our NDDP or through your financial institution or if our NDDP (for any reason other than one caused by our NDDP) cannot direct debit your Nominated Account.
20.2. OUR RIGHTS AFTER AN EVENT OF DEFAULT:
(a). If an Event of Default occurs and creates a material risk to Butn or caused or is likely to cause material detriment to Butn, we may, after you are provided a reasonable period to remedy the Event of Default, at our option:
A. you are in default;
B. this Agreement is terminated; and
C. any amounts owing to us under this Agreement are payable immediately;
(ii). exercise your rights and remedies and comply with your obligations in respect of the Collateral;
(iii). vary, replace or release any of your right or interest in or in relation to the Collateral;
(iv). sell or assign any Collateral;
(v). on your behalf or otherwise:
A. commence, defend, prosecute, settle, discontinue and conciliate litigation, administrative or arbitral proceedings in relation to the Collateral;
B. enter into and execute and deliver any documents and agreements for the purposes of this Agreement;
C. give receipts, release, discharge or compromise any debt or other obligation owed to or by you as part of the Collateral;
D. do anything necessary to perform or observe any of your obligations under this Agreement;
E. do or cause to be done anything to protect the priority of this Agreement, to protect your or our right, title or interest in the Collateral;
F. do anything incidental or conducive to the exercise of any of its other rights under this Agreement;
G. either before or after we have taken possession of the Collateral, and either before or after an order has been made or a resolution passed for your winding up, appoint in writing any one or more persons to be a Receiver or Receiver and manager of the Collateral;
H. appoint a different Receiver or Receiver and manager for different parts of the Collateral;
I. remove the Receiver, appoint another in substitution if the Receiver is removed, retires or dies and reappoint a Receiver who has retired or been removed;
J. fix or vary the remuneration of the Receiver.
K. Subject to complying with any notice provisions (if any), register a default against you or a Guarantor with a credit reporting agency.
(b). We may appoint any person or any two more persons jointly and severally as our agent to exercise any of our rights under this Agreement and the provisions of this clause 20.2 apply as if the agent was a Receiver.
20.3. DEFAULT NOTICE
(a). You and us (unless otherwise required by a law which cannot be excluded) dispense with any requirement under any statute or rule of law or equity that notice be given by us, Receiver or Attorney, as the case may be, or that it allows the lapse of any period of time (including without limitation, a period to rectify a default), before exercising a right.
(b). A notice in this clause 20.3 includes any notice identifying a default by you, giving a period to rectify a default by you or giving notice that a power to sell or take possession of any Collateral, or to appoint a Receiver to any Collateral.
(c). If an applicable law cannot be excluded requires a notice to be given or a lapse of time to occur before any right can be exercised, then if no particular period of notice or lapse of time is required, or if the period of notice or lapse of time is capable of being abridged by being stipulated as a lesser period, the period of notice or lapse of time shall be the longer of one day or such minimum period as stipulated.
21. APPLICATION OF MONEY
21.1. Remedy Proceeds may, subject to any mandatory statutory requirements, be applied by us or any Receiver towards any amount and in any order which we, any Receiver or any Attorney (as the case may be) determines.
21.2. If any transaction, or any payment or transfer received by us, relating to any monies which you owe us under this Agreement is void, voidable, or is otherwise unenforceable or refundable (whether under any law relating to Liquidation or otherwise):
(a). You and us (unless otherwise required by a law which cannot be excluded) dispense with any requirement under any statute or rule of law or equity that notice be given by us, Receiver or Attorney, as the case may be, or that it allows the lapse of any period of time (including without limitation, a period to rectify a default), before exercising a right;
(b). any release, discharge or settlement given or made as a result of that transaction or the receipt of that payment or transfer shall be of no force and effect; and
(c). you shall immediately on request do all things and sign any documents necessary or desirable to restore to us:
(i). the security created by this Agreement; and
(ii). Our rights under this Agreement, held by us immediately prior to the transaction being entered into or the payment or transfer being received.
22. THIRD PARTY DEALINGS
22.1. PRESERVATION OF OUR RIGHTS
(a). We are not required to proceed against or enforce any right against any person or demand payment from any other person before making a demand for payment from you or a Guarantor (as the case may be) for any monies which you are liable to pay us under this Agreement.
(b). Your obligations and our rights under this Agreement will not be affected by anything which but for these subclauses might abrogate, prejudice or limit them or the effectiveness of this Agreement including:
(i). Any variation of this Agreement;
(ii). The granting of any forbearance, time, waiver or other concession or indulgence to any person;
(iii). any failure by us or any person to take or perfect any Security Interest or other document or agreement or to enforce or properly exercise any rights in relation to any of them;
(iv). any failure by us to give notice of any Event of Default or make any demand.
22.2. SUBROGATION AND SET OFF
(i). waive any right to be subrogated to or otherwise have the benefit of this Agreement until all monies payable under this Agreement have been satisfied in full and in our reasonable opinion any payment towards the satisfaction of the same is not void, voidable or otherwise unenforceable or refundable; and
(ii). shall not exercise a right of set-off or counterclaim available to you or any other person liable to us in relation to any monies which you owe us to reduce or extinguish your obligation to pay the same.
(a). We are not obliged to marshal, or appropriate in your favour, or exercise rights under, any Security Interest or this Agreement or any property that we have an interest in or may be entitled to receive.
(b). You shall not in the Liquidation of any person whose obligations to us you have guaranteed:
(i). directly or indirectly claim or receive the benefit of any distribution, dividend or payment; or
(ii). prove or claim any distribution, dividend or payment in competition with us;
22.4. so as to diminish any distribution, dividend or payment which but for that claim or proof we would be entitled to receive, until the all monies which you owe us pursuant to this Agreement has been paid in full and we are of the opinion that no payment of those moneys is or is likely to become void, voidable or otherwise unenforceable or refundable.
23.1. IMMEDIATE TERMINATION
(a). Either party may terminate this Agreement effective immediately if the other:
(i). breaches a material term of this Agreement;
(ii). is found guilty of serious or wilful misconduct or any conduct which injures or is likely to injure the reputation of the other party or the reputation of or relationship with its employees or clients;
(iii). is found guilty of a serious criminal offence;
(iv). an Insolvency Event occurs with respect of that party.
23.2. TERMINATION WITHOUT CAUSE
(a). You may at any time give us a notice of your desire to terminate this Agreement without cause. Upon you giving such notice:
(i). we will close your Account; and
(ii). all monies owing to us by you pursuant to this Agreement become immediately repayable and Extension Fees will apply from the date of such notice.
(b). We may at any time give you thirty (30) days’ notice of our intention to terminate this Agreement without cause, and on the expiry of such thirty (30) day period:
(i). we will close your Butn Account;
(ii). all payments owing in accordance with this Agreement remain payable.
23.3. EFFECT OF TERMINATION
(a). Notwithstanding the giving of a termination notice pursuant to this clause, your obligations under this Agreement will continue until such time as you have paid us in full all monies that you owe us pursuant to this Agreement.
(b). On termination of this Agreement all monies owing to us by you pursuant to this Agreement become immediately payable and Extension Fees will apply from the date of the termination.
24.1. RECEIVERS AS AGENT
(a). Subject to 24.1(b) and 24.1(c), a Receiver will be your agent who alone shall be responsible for the Receivers’ acts and omissions and remuneration.
(b). We may appoint a Receiver as our agent and delegate to a Receiver any of our rights under this Agreement.
(c). To the extent that as a result of an order being made or a resolution being passed for your winding up, a Receiver ceases to be your agent, the Receiver will immediately become our agent.
A Receiver shall have the right in relation to any property in respect of which the Receiver is appointed to do everything that you may lawfully authorise an agent to do on your behalf in relation to that property and, without limitation, a Receiver may in relation to that property exercise:
(a). the rights conferred upon Receivers and Receivers and managers by the Corporations Act and the laws of any applicable jurisdiction;
(b). your rights and your directors’ rights; and
(c). any other rights we may by written notice to a Receiver give to a Receiver.
You must remunerate us or any Receiver for any services rendered by us or them in relation to the exercise of any right under this Agreement and the rate of the remuneration and the manner of payment will be that determined by us.
25. GENERAL PROVISIONS
25.1. RIGHT TO VARY
(a). We may at any time during the currency of this Agreement unilaterally vary a provision of this Agreement without your consent or prior agreement, provided that we will give you at least sixty (60) days’ notice of any variations that may affect you, including but not limited to the Retention Percentage.
(b). For the avoidance of doubt, if we charge any further fees, we will give you at least thirty (30) days’ days’ written notice of the inclusion of any new or varied fee.
(c). Any variation to this Agreement shall only apply to the Payment Amount(s) due and payable to us after the date of any such variation.
25.2. INDEPENDENT ADVICE
You and each Guarantor warrant that you have at our recommendation, each obtained independent legal and financial advice before you signed this Agreement or, you have each elected to not obtain such advice.
25.3. NO ADVERSE INTERPRETATION
No provision of this Agreement shall be construed in our disadvantage because we were responsible for its preparation.
(a). A notice, consent or other communication under this document is only effective if it is in writing, signed and either left at the addressee’s address or sent to the addressee by mail or email/electronic form such as email.
(b). A notice, consent or other communication that complies with this clause is regarded as given and received if sent to the particulars of each party as noted in the Schedule and:
(i). if sent by mail, three Business Days after it is posted; and
(ii). if sent by email, when the sender receives an acknowledgment from a computer system controlled by its addressee or any entity employing or otherwise engaging that addressee.
If any part of this Agreement is held to be invalid or unenforceable by a Court, then the remainder of this Agreement will not be affected by that finding. The part(s) of the Agreement that are held to be invalid or unenforceable will to the greatest extent possible be severed from this Agreement as if they had never been included, and the remainder of this Agreement will remain in full force and effect.
(a). You must not assign, transfer, sub-contract, create any trust over or otherwise deal with in any way your rights or obligations under this Agreement without our prior written consent.
(b). We may assign, transfer, sub-contract, create any trust over or otherwise deal in any way with our rights or obligations under this Agreement without our prior written consent.
25.7. FURTHER DOCUMENTS
The parties agree to do such further acts and things and execute such further documents as will be reasonably necessary to give effect or better effect to the provisions of this Agreement.
25.8. ELECTRONIC EXECUTION
Each party agrees and consents to use of electronic signatures, whether digital, encrypted, scanned or transmitted versions of an original, for the execution of this Agreement, and that an electronic signature shall have the same legal effect, validity and/or enforceability as a manually executed signature.
25.9. FORCE MAJEURE
Each party releases the other party from any claim, liability or responsibility under this Agreement concerning the other party’s failure to perform any obligation under this Agreement where and only where such failure is due to strike, lockout, riot, industrial action, fire, storm, tempest, act of God, material shortage, government law or requirement or any other cause totally beyond the control of the other party and no such failure will entitle a party to terminate this Agreement.
25.10. COST OF THIS AGREEMENT
Each party will pay their own legal, accounting and other costs in relation to this Agreement, and you must pay our reasonable costs and expenses of:
(a). any amendment or negotiation to amend to this Agreement;
(b). any attempted or actual enforcement, preservation or protection of this Agreement or of any of our rights under this Agreement; and
(c). any attempt to or actual rectification by us of any breach of this Agreement by you.
A provision of or a right created under this Agreement may not be waived except in writing signed by the party or parties providing the waiver. No failure, delay, relaxation or indulgence by a party in exercising any power or right conferred upon it under this Agreement will operate as a waiver of that power or right. No single or partial exercise of any power or right precludes any future exercise of it, or the exercise of any other power or right under this Agreement.
25.12. INDEMNITIES CONTINUING
Any indemnity provided by a party under this Agreement is a continuing obligation separate and independent from any other obligations of that party and survives termination of this Agreement.
25.13. NO SET-OFF
You must pay us all moneys due to us under this Agreement free from any set-off (whether legal or equitable), equities or cross claims which you may otherwise be entitled to claim against us.
25.14. TIME OF THE ESSENCE
With respect to your obligations under this Agreement, time is of the essence. No extension or variation of your obligations will operate as a waiver of this clause.
25.15. DISCLOSURE OF COMMISSION
We disclose that we, or our Related Person or Entity:
(a). may be entitled to a commission from third parties from you using the Products; and
(b). may be required to pay a commission to third parties from you using the Products.
25.16. DISCLOSURE OF INFORMATION
(a). Subject to our compliance with clause 25.15, we may disclose any information obtained by us, or from you or a Guarantor or provided by a third party, where disclosure is:
(i). to our nominated direct debit provider for the purposed of direct debiting you Nominated Account in accordance with this Agreement;
(ii). required by a stock exchange or is permitted or required by any law;
(iii). reasonably required to exercise our rights or assignment, novation or otherwise dealing with our rights or obligations. This includes in connection with the enforcement of this Agreement, any Security Interest or any guarantee;
(iv). to our officers, employees, agents, auditors, lawyers or advisers;
(v). to a provider of finance, insurance or credit enhancement to us or you;
(vi). related to information that is generally and/or publicly available;
(vii). reasonably required for the registration and maintenance of any financing statement or financing change statement, in our absolute discretion; or
(viii). reasonably required for the enforcement, operation or administration of this Agreement.
(b). This clause does not limit any other consent which you or a Guarantor has or may provide.
25.17. ENTIRE AGREEMENT
This agreement (including any document expressed as being a part of this Agreement) contains the entire understanding between the parties in relation to its subject matter and supersedes any previous arrangement, understanding or agreement relating to its subject matter. There are no express or implied conditions, warranties, promises, representations or obligations, written or oral, in relation to this Agreement other than those expressly stated in it or necessarily implied by statute.
25.18. GOOD FAITH
The parties agree to:
(a). not to participate in unconscionable conduct, in relation to this Agreement;
(b). act in an ethical, honest and lawful manner towards each other and towards suppliers, customers and staff of the business,
(c). act towards each other with good faith.
This agreement is deemed to be made in Victoria, Australia and its construction, interpretation and enforcement shall be governed by the laws in force in Victoria, Australia.
25.20. APPROVALS AND CONSENTS
Unless a clause requires our consent to be reasonable, for all consents or approvals that you are required to seek from us pursuant to this Agreement, we may give our or withhold consent or approval to your request, and if we give our consent or approval, we may impose conditions on that consent or approval.
26. DEFINITIONS AND INTERPRETATION
Unless the context provides otherwise:
ABN refers to an Australian Business Number (ABN).
ACN refers to an Australian Company Number (ACN).
Account has the same meaning as defined by the PPSA and includes, without limitation, all your rights, interest and title, whether present of future, legal or equitable in:
(a). Butn X: the Transaction Amount;
(b). Butn Now: a future commission or payment payable to you by the Third Party which we advance to you, including but not limited to the Payment Amount.
Account Statement means a statement of all your transactions with us and includes all Transaction Amounts outstanding as at the date of issue.
Agreement refers to this agreement.
Aggregator refers to an online marketplace or platform partner through which you can access the Products.
Application refers to your application to us, or our Related Person or Entity to use a Product.
AML/CTF refers to Money Laundering and Counter-Terrorism Financing Act 2006 (Cth).
ASIC refers to the Australian Securities and Investments Commission.
Attorney means any attorney appointed under this Agreement and any person who by delegation directly or indirectly derives a right from an attorney.
Australian Bank refers to an Authorised Deposit-taking Institution (ADI) under the regulation of the Australian Prudential Regulation Authority.
ACL refers to Schedule 2 of the Competition and Consumer Act 2010 (Cth).
Butn Account means the user account that is created and linked to your identity and used to manage Requests.
Butn Now refers to the Product known as Butn Now.
Butn Pay refers to the Product known as Butn Pay.
Butn Platform is the suite of features and processes which allows you to access the Products.
Butn Portal refers to the web and mobile interface which allows you to access the Products.
Butn X refers to the Product known as Butn X.
Business Day a day which is not a Saturday, Sunday, public holiday or bank holiday in Victoria.
Claim means, in relation to a person, any claim allegation, cause of action, proceeding, Liability, suit or demand made against the person concerned however it arises and whether it is present or future, fixed or unascertained, actual or contingent.
Collateral refers to:
(a). all your property, rights and undertaking whether present or future, legal or equitable, and wherever situated, including, without limitation, all real and personal property, choses in action, goodwill and uncalled capital and called but unpaid capital from time to time, and
(b). anything in respect of which you have at any time, sufficient right, interest or power to grant a Security Interest, and
(c). Where relevant and without limiting the generality of (a) and (b) of this definition, Collateral also includes:
(i). Butn Pay:
A. all your property, rights and undertaking whether present or future, legal or equitable, and wherever situated, including, without limitation, in the goods that you purchased from the Supplier through the use of the Product.
(ii). Butn Now:
A. all your property, rights and undertaking whether present or future, legal or equitable, and wherever situated in proceeds,
B. all present and future acquired Accounts including but not limited to payments by the Third Party of the Transaction Amount.
(iii). Butn X:
A. All your interest, whether present or future, legal or equitable in your Accounts, including but not limited to the Transaction Amount.
Corporations Act refers to the Corporations Act 2001 (Cth).
Debt means an amount the Debtor owes to You.
Debtor means, with respect to any Transaction Amount for Butn X, the person required to pay the Transaction Amount to you.
Discount refers to a monetary allowance, concession or deduction provided by you to the Third Party pursuant to an agreement between you and the Third Party or otherwise which results in the Third Party being required to pay less than the Payment Amount.
Event of Default refers to one or more events described by clause 20.
GST has the same meaning as in the GST Law.
GST Law means A New Tax System (Goods and Services Tax) Act 1999 (Cth).
Guarantor refers to the person so named in this Agreement.
Insolvency Event refers to:
(a). in respect of a company, refers to the occurrence of the following events:
(i). except for the purpose of a solvent reconstruction or amalgamation, process is filed in a court seeking an order that it be wound up or that a controller be appointed;
(ii). to it or any of its assets, unless the application is withdrawn, struck out or dismissed within 7 days of it being filed; or an order is made that it be wound up or that a controller be appointed to it or any of its assets; or a resolution that it be wound up is passed or proposed;
(iii). a liquidator, provisional liquidator, controller or any similar official is appointed to, or takes possession or control of, all or any of its assets or undertakings;
(iv). an administrator is appointed, or a resolution that an administrator be appointed to it is passed or proposed, or any other steps are taken to appoint an administrator;
(v). it enters into, or resolves to enter into, an arrangement, compromise or composition with any of, or any class of, its creditors or members, or an assignment for the benefit of any of, or any class of, its creditors, or process is filed in a court seeking approval of any such arrangement, compromise or composition;
(vi). a re-organisation, moratorium, deed of company arrangement or other administration involving one or more of its creditors is proposed or effected;
(vii). any action is taken by the ASIC with a view to its deregistration or its dissolution, or an application is made to the Australian Securities and Investments Commission that any such action be taken;
(viii). it is insolvent within the meaning of s95A of the Corporations Act, states that it is unable to pay its debts or it is presumed to be insolvent under any applicable law;
(ix). as a result of the operation of s459F (1) of the Corporations Act, it is taken to have failed to comply with a statutory demand;
(x). it does or threatens to stop or suspend or the payment of all or a class of its debts;
(xi). any event or circumstance set out in s461 of the Corporations Act occurs; or
(xii). anything having a substantially similar effect to any of the events specified in paragraphs (a)(i) to (a)(xi) of this definition happens to it under the law of any jurisdiction; and
(b). In respect of a natural person, the occurrence of any one or more of the following events:
(i). a bankruptcy notice is issued;
(ii). a receiver or a trustee for creditors or in bankruptcy is appointed to any of the person’s property;
(iii). the person proposes or enters into an arrangement or composition with, or an assignment for the benefit of, any of the person’s creditors;
(iv). the person proposes or effects a moratorium involving any of the person’s creditors;
(v). the person stops or suspends, or threatens to stop or suspend, the payment of all or a class of its debts;
(vi). the person is unable to pay all of the person’s debts as they fall due or is presumed to be insolvent under law;
(vii). the person becomes an “insolvent under administration” as defined in s9 of the Corporations Act; or
(viii). anything having a substantially similar effect to any of the events specified in paragraphs (b)(i) to (b)(vii) of this definition happens to the person under the law of any jurisdiction.
Instalment refers to the number of payments as elected by you, to repay the Transaction Amount, which is more accurately set out in the Payment Schedule.
Intellectual Property refers to all intellectual proprietary rights, whether registered or unregistered and whether existing under statute, at common law or in equity throughout the world of us or our Related Person or Entity, including without limitation:
(a). all trademarks, trade names, logos, symbols, brand names or similar rights, registered or unregistered designs, patents, copyright, trade secrets and the right to have confidential information, together with;
(b). any application or right to apply for any of the rights referred to in paragraph (a) above.
Liability means, in relation to a person, any liability or obligation however it arises and whether it is present or future, fixed or unascertained, actual or contingent but excluding any liability for consequential or indirect loss, economic loss or loss of profits.
Liquidation administration, receivership, amalgamation, reconstruction, winding-up, dissolution, assignment for the benefit of creditors, arrangement or compromise with creditors, bankruptcy or death.
Loss includes any loss, damage, Liability, compensation, fine, penalty, charge, payment, cost or expense (including any legal cost and expense) on a full indemnity basis however it arises and whether it is present or future, fixed or unascertained, actual or contingent but excluding any consequential or indirect loss, economic loss or loss of profits.
Material Adverse Effect a material adverse effect upon any one of more of the following:
(a). your ability to comply with your obligations under this Agreement;
(b). your financial position;
(c). the effectiveness, priority or enforceability of this Agreement or any other security.
NDDP means our nominated direct debit provider.
Nominated Account refers to your account with an Australian Bank or other financial institution nominated by you as the account for direct debit payments in accordance with this Agreement.
Nominated Insurer any person or company contracted by us to reduce our risk (financial or otherwise) under this Agreement.
Payment Amount where relevant refers to:
(a). Butn X: the Transaction Amount less the Retention Amount less the Butn Fee.
(b). Butn Pay: the value of the Supporting Documents (being the amount payable by you to the Supplier).
(c). Butn Now: the value of the Supporting Document (being the monetary value owed to you by the Third Party) less the Butn Fee.
Payment Date where relevant refers to:
(a). Butn X: the date that the Transaction Amount is due pursuant to the terms of any agreement between you and the Debtor as notified to us by you.
(b). Butn Pay: each date nominated in the Payment Schedule, being a date which we will direct debit your Nominated Account for each Instalment.
(c). Butn Now: the date that is sixty (60) days from the date we pay you the Payment Amount.
Payment Schedule refers to the list of the Instalments and Payment Dates with respect of a Transaction Amount payable by you.
Personal Information has the same meaning as in the Privacy Act.
PPSA Personal Property Securities Act 2009 (Cth).
PPSR refers to Personal Property Securities Register.
Privacy Act means the Privacy Act 1998 (Cth).
Product means the products known as Butn X, Butn Now and Butn Pay.
Settlement means, in respect of a Payment Amount, the date We pay the Payment Amount to You,
Supplier means, where applicable, a third party supplier to whom You owe a Debt.
Supporting Document where relevant means any number of documents:
(a). Butn X: you issue the Debtor with respect of the purchase of goods and/or provision of services, including but not limited to an invoice. This document must detail the Transaction Amount.
(b). Butn Pay: the Supplier issues to you with respect of your purchase of goods and/or services, including but not limited to an invoice. This document must detail the Transaction Amount.
(c). Butn Now: that entitles you to a future payment from the Third Party for goods or services provided by you, including but not limited to a commission. This document must detail the Transaction Amount.
Receiver a receiver or receiver and manager appointed by us under this Agreement and any person who derives a right directly or indirectly from any receiver or receiver and manager.
Related Body Corporate has the same meaning as in the Corporations Act.
Related Person or Entity means in relation to:
(a). a body corporate: includes any director, secretary, shareholder or officer, as well as any Related Body Corporate; and,
(b). an individual: any body corporate the individual is a director, secretary, shareholder or officer.
Remedy Proceeds means money received from exercising our right on default under this Agreement.
Repayment Date means a date on which all, or a portion of, the Payment Amount is to be paid to us.
Retention Amount refers to the amount that is calculated by multiplying the Transaction Amount by the Retention Percentage.
Retention Percentage means the percentage of the Transaction Amount that Butn does not provide funding for, which is notified to you upon confirmation of funding for any transaction by Butn.
Request where relevant refers to a request submitted by you to use the Product to:
(a). Butn X: assign a Debt in exchange for payment.
(b). Butn Pay: pay for a good/service from a Supplier.
(c). Butn Now: receive a payment in advance of a future payment by a Third Party.
Third Party refers to the party who owes you a payment at a future date which you wish for us to advance to you now. This may be, without limitation, a commission payable to you.
Transaction Amount where relevant refers to:
(a). Butn X: the debt as owed by the Debtor to you as evidenced by the Supporting Documents, which you assign to us, the dollar figure of which, minus the Retention Amount, is payable by the Debtor to us as evidenced by the Supporting Documents.
(b). Butn Pay: the total dollar ($) amount payable by you to us, and calculated as follows:
Payment Amount PLUS the Butn Fee,
(c). Butn Now: the total dollar value of the amount owed to you by the Third Party as detailed in the Supporting Documents.
Transaction Document includes:
(a). this Agreement;
(b). any agreement relating to the priority of this Agreement or any Security Interest given by you pursuant to this Agreement; and
(c). any document entered into between the parties which is designated by them as a Transaction Document for the purpose of this Agreement.
Us/We means Australian Factoring Company Pty Ltd ACN 166 764 978
You means the entity identified as You on the execution page of this Agreement.
Unless the context provides otherwise:
(a). if an expression is defined in clause 26.1, grammatical derivatives of that expression have a corresponding meaning. (For instance, if “to colour” means “to paint red”, then “coloured” means “painted red”.)
(b). Headings are only for convenience. They are to be ignored when interpreting this agreement.
(c). A schedule to a document forms part of that document.
(d). A reference to the singular includes the plural and vice versa.
(e). Where one item is said to include one or more other items, it is not limited to those other items.
(f). There is no significance in the use of gender-specific language.
(g). A “person” includes:
(i). any entity which can sue and be sued.
(ii). any legal successor to or representative.
(h). A reference to a law includes any amendment or replacement of that law.
(i). Anything a party can do; it may do through an appropriately authorised representative.
(j). Where the context requires it, the term “you” will include you and each of the Guarantors.