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Terms & Conditions
zipMoney Payments Pty Ltd ABN 58 164 440 993 | E: zipmoney.com.au | P: (02) 8294 2345 |
A: 14/10 Spring St Sydney NSW 2000
About these Terms and Conditions
Your Contract comprises:
1. The zipPay Schedule; and
2. These Terms and Conditions.
Before you accept this offer and a Contract is formed you should read both documents carefully. Together they contain information we are required by law to give you and you should keep them for future reference.
The following terms and expressions have the following meaning in the Terms and Conditions and zipPay Schedule:
Acceptance Date means the date the offer was accepted and the Contract formed
Access Method means: a) a method made available by us for you, and authorised and accepted by us, to act on an instruction or request to debit or credit an Account; and b) comprises the use of one or more components (including but not limited to) Password, PIN, e-signature, token or SMS Code.
Access Code means any one or more of your Password, PIN, Token, SMS Code and any other code we provide to you from time to time, that enables you to gain access to or use your Account and which you are required to keep secret.
Account means the Account we set up to record Transactions under this Contract.
Account Fee means the fee set out in the zipPay Schedule in respect of the services provided by ZIP as set out in clause 3.
Account Limit means the amount specified as the Account Limit in the zipPay Schedule or, if varied by us, the Account Limit as varied and notified.
Account Number means the unique number that identifies your Account.
Available Credit means the difference between the Account Limit and the sum of the Outstanding Balance and any Transactions authorised but not yet posted to your Account.
BPAY Facility means the BPAY Facility we allow you to use to make BPAY payments to your Account
Business Day means a Day that is not a Saturday, Sunday or Public Holiday in New South Wales.
Buyer Protection means the service offered by ZIP in respect of disputed Transactions with a Merchant as detailed on our website at zipmoney.com.au/buyers-protection/
Closing Balance means the closing balance of your Account as described on a Statement.
Contract means the Contract between you and us comprising the zipPay Schedule and these Terms and Conditions.
Customer ID means a number we give you that identifies you as having an Account with us.
Direct Debit Request is an authority that allows us to debit your Nominated Account and to credit your Account.
Direct Debit Request Service Agreement means your agreement with us in respect of your Direct Debit Request.
Disbursement Authority means your request for ZIP to transfer funds from your Account.
Drawdown means the borrowing of money under your Account.
Due Date means the day by which you are required to make your repayments as set out in the Schedule
Effective Date means the date that we assign to an amount that is debited, or where relevant, credited to your Account.
Electronic Equipment means any electronic device which is capable of receiving emails including but not limited to a computer, telephone or mobile phone.
Invoice (Order or Receipt) means the document provided to you by the Merchant at the time of Purchase recording details of the Purchase.
Merchant means a retailer or supplier of goods or services who accepts Purchases.
Minimum Repayment Amount means the minimum amount you are required to pay us by the Due Date as notified on your zipPay Schedule or Statement.
Outstanding Balance means the difference between all amounts credited to and all amounts debited from your Account.
Past Due Amount (Overdue) means the amount described as such on your Statement, which includes but not limited to repayments not made by the Due Date.
Password means the secret alphanumeric code used by you to access your Account.
PIN means the personal identification number used by you to access your account.
Purchase means a Drawdown to pay a Merchant for the supply of goods and services.
SMS means the telecommunications “short message service” technology which may allow text messages to be sent to your Mobile Phone.
SMS Code means an authorisation code sent by SMS to your Mobile Phone to authorise a Transaction on your Account.
Statement means a statement of account issued by us in respect of your Account.
Terms and Conditions means this zipPay Terms and Conditions document which forms part of your Contract.
Transaction means a Purchase, or any other type of Drawdown, authorised by you and accepted and authorised by us under this Contract.
Transaction Amount means the dollar amount related to a Transaction posted to your Account.
Transaction Date means the date that a Transaction is processed to your Account which is described as such in a Statement.
Unauthorised means without your knowledge or consent.
Unpaid Balance (Outstanding Balance) means the difference between all amounts credited to and all amounts debited from your Account.
we, us, our means ZIP and includes its’ successors and assigns and anyone acting on our behalf.
you, your means the holder of the Account, and where more than one includes each of you individually and all of you collectively.
ZIP means zipMoney Payments Pty Ltd ABN 58 164 440 993.
ZIP Customer Centre means a secure online service where ZIP customers may log in to access their Account to obtain current or historical Account information, Transaction information, or provide ZIP with new personal information, or change banking and repayment details.
zipPay Schedule means the zipPay Schedule which forms part of your Contract.
The Contract governs all Transactions made using the Account.
Nature of the Account
The Account can be used by you for making Transactions in accordance with the Contract.
We incur costs in providing the services set out in the Contract, including but not limited to: Account set up and Account management; creating, monitoring and maintaining secure Access Methods and Access Codes; approving, authorising and verifying Transactions; providing Statements; managing and processing your Repayments through Direct Debit, Card or BPay; reviewing Unauthorised Transactions and providing Buyer Protection; managing and maintaining the Website and ZIP Customer Centre. We will charge an Account Fee each month for those costs incurred but will waive the Account Fee if you pay the Closing Balance in full by the Due Date.
acknowledge and agree that both you and Zip have or will sign this Contract electronically; and
consent to providing your signature electronically for the purposes of this Contract, the Direct Debit Service Agreement, and the Privacy Act Authorisation and Disclosure.
You cannot make a Transaction until your Account is activated. Your Account is activated by you accepting your Contract.
Communications Between Us
By inserting your email address in the zipPay Schedule you authorise us to use email for communication purposes,
You must tell us if you change your name, your residential, postal or email address, your telephone or mobile number.
If you have to give us a document or notice then you can:
leave it at our office address as shown on the zipPay Schedule, or any other address we tell you; or
email it to an email address we tell you
Unless stated otherwise, if we need to give you a document or notice we can do so by:
delivering it to you personally; or
leaving it at, or sending it by post to your residential or postal address last known to us; or
emailing it to the email address you have provided to us.
If you have provided us with your email address you must:
regularly check your email address to see if you have received any emails from us;
maintain and check your Electronic Equipment and your email address regularly to ensure it is always capable of receiving emails from us; and
you are responsible for printing or saving important documents, and we strongly recommend that you do so.
By inserting your telephone number in the zipPay Schedule you authorise us to use this telephone number for communication purposes, which may include contacting you for the purposes of ensuring compliance with your obligations under this Contract.
Making Transactions on your Account
We allow you to make a Transaction on your Account through any Access Method we determine which may include:
making a Purchase with any Merchant authorised by us; or
at the ZIP Website www.zipmoney.com.au; or
any other Access Method we authorise from time to time.
To find out which Merchants are recognised by us please check our Website, the Zip Customer Centre or telephone our customer service team.
Transactions on your Account are initiated and authorised using a combination of Password, PIN and SMS Code.
Note that not all Access Methods may be available for your Account.
We are not liable for any refusal or failure of a Merchant to accept your instructions at any time or for the quality, performance or other matters in relation to goods and services bought with Transactions on your Account unless this is required by law or a code or is covered by the Terms and Conditions.
All Transactions made from your Account will be debited to your Account and you agree to repay them to us in accordance with the Contract. Daily or periodical transaction limits may apply on the number or value of Transactions on your Account you may make using different Access Methods. If we apply or vary any daily or periodic transaction limit we will advise you.
All Transactions made from your Account are at our absolute discretion.
If you have an issue with the Merchant in respect of the Transaction you may wish to contact us through our website and ask whether Buyer Protection applies.
You must pay us the Minimum Repayment Amount shown on your Statement by the Due Date shown on your Statement. You may choose to pay more if you wish but you must not put the balance in your Account in to credit.
An explanation of the Minimum Repayment Amount is set out in the zipPay Schedule.
You are responsible for ensuring that payment is received by us on time on or before the Due Date.
If the Due Date is not a Business Day, or on the 29th, 30th or 31st of a month that does not include such a day, you must ensure it is received by us by the next Business Day
If your Statement shows a Past Due Amount (Overdue) or refers to an amount “Due Immediately” you must also pay us that amount immediately on receipt of your Statement.
Application of Repayments
A repayment will be treated as being made on the Effective Date. The Effective Date for each repayment will be set out in your Statement.
We will apply your repayments to your Unpaid Balance
How to make Repayments
Repayments must be made in a manner shown on your Statement, as amended from time to time, which may include the following:
direct debit from your Nominated Account (by completing a Direct Debit Request) ; or
BPAY from any participating financial institution (please refer to your Statement or the ZIP Customer Centre for further information on how to make a repayment to us Using BPAY); or
by signing in to your account at www.zipmoney.com.au and using one of the payment methods identified; or
By any other method we advise you of.
Your Account Limit is the amount specified in the zipPay Schedule or such other amount as we may authorise. Subject to any Transaction limits you may Drawdown up to your Account Limit. You must ensure that you do not exceed your Account Limit. If your Account Limit is reached or exceeded fees and Government charges will continue to be charged to your Account even if debiting these items results in you exceeding your Account Limit. Your Account Limit does not change because your Account balance exceeds your Account Limit. Any excess above your Account Limit shall be immediately repayable by you without the necessity for ZIP to demand repayment. Should your Account reach the Account Limit, you should not initiate and we may not authorise further Transactions on your Account.
We may increase your Account Limit at your request or with your written consent, subject to our approval. You may request us to reduce your Account Limit at any time.
As per clause 20 we may decrease your Account Limit at any time.
The Account must not have a credit balance. However, if your Account has a credit balance, Transactions on your Account will firstly be applied to reduce your credit balance.
We will not pay interest on the credit balance of your Account.
You must pay us the fees and charges in the amounts and the circumstances set out in the zipPay Schedule, as varied from time to time. We will debit the fees and charges to your Account when they are payable and they will appear on your Statement.
Government Fees and Charges
You must pay all Government duties, rates, taxes and charges now, or in the future, charged on or otherwise payable in relation to your Contract or your Transactions. You must pay us the amounts in accordance with the relevant legislation, whether or not you are liable for them under that legislation. We may debit these to your Account and they will appear on your Statement.
Accessing your Account
We may provide you with access to your Account, at our absolute discretion, to obtain information or give us instructions using any one or more of the following Access Methods:
our ZIP Customer Centre;
our customer service team;
A Merchant recognised by us; or
Any other method that we determine from time to time
Access to your Account may require a one of, or a combination of, a Password, PIN or SMS Code. We will try (without any legal obligation) to provide access on a 24-hour continuous basis. However, circumstances may not always make this possible.
Password Access to your Account
You must keep your Password secret and secure. This is because your Password permits the holder of the Password to access our Website and, therefore, information about your Account and to give instructions in respect of your Account. Please ensure you do not record or save your Password on your computer or on any emails. If you have lost, forgotten, or misplaced your Password, or believe someone knows it please contact us to cancel your Password and to re-set your Password.
Your Password should also:
Be changed regularly via our website or our customer service team, be easy to memorise but difficult to guess and not have any connection with you (such as birthday, telephone number, car registration etc);
Not be disclosed to anyone else, not even family members or friends; and
Not be stored in your computer programmable function keys.
You should also ensure that:
your computer is free from viruses and any form of password recording program or mechanism;
your computer is not left unattended while logged onto our website; and
you shut down all browser windows used to gain access to our website and that the ‘back’ function or similar cannot be used to trace your activities
Your email address and mobile phone number
We may use your email address as part of our secure log in and/or Transaction authorisation process, or to advise you of any enhancement or changes to your Account which may alter our delivery of, or your ability to use your Account. You need to keep your email address current. You may update your email address by contacting us or Using the Zip Customer Centre. If you do not provide us with a correct email address, you may not receive important information and Statements regarding your Account.
We may use your Mobile Phone number to send you SMS Codes as part of the Transaction authorisation process and other information relevant to this service. You need to keep your Mobile Phone number current. You may update your Mobile Phone number by contacting us or using the Zip Customer Centre. If you do not provide us with your correct Mobile Phone number you will not be able to transact on your Account, and you may not be notified of important information relevant to the use of your Account.
Liability for Unauthorised Transactions on your Account
You are liable to us in respect of an Unauthorised Transaction when:
you have failed to advise us of any suspected or unauthorised use of your Account; or
you have provided information regarding your Password to someone whether knowingly or not; or
you have committed fraud.
You are not liable to us in respect of an Unauthorised Transaction when:
The Unauthorised transaction occurred after you had advised us of suspected use of your Account; or
A Transaction is incorrectly credited or debited to your Account by us; or
It is clear that you have not contributed to the loss; or
It was caused by the fraudulent or negligent conduct of employees or agents of:
any organisation involved in the provision of the EFT System; or
any Merchant; relating to a forged, faulty, expired, fraudulent or cancelled Transaction
If you are concerned about any suspect activity on your Account, please contact our customer service team immediately.
You will receive a Statement each month where there has been a Transaction made on your Account or where there is an Outstanding Balance in the period. You are also entitled to ask for a Statement at any time. We may charge you a fee to provide Statements on request. All our Statements are provided electronically unless specifically requested otherwise. It is your responsibility to check your Statement carefully as soon as you receive it and immediately notify us of any errors or unauthorised Transactions. So that you can check your Statement you may wish to keep all your records of all your Invoices.
Changes to your Contract
Subject to the law we may vary your Contract at any time without your consent including:
Changing the amount, frequency, time for repayment, or method of calculating any repayments;
Changing the amount, frequency or time for payment of any fee or charge;
Imposing a new fee or charge;
Reducing (but not increasing) the Credit Limit;
We will give you notice of any change in accordance with any requirement of the law which may apply.
We will give you 20 days notice of a change if:
The change will impose or increase any fees or charges relating to the use of an Access Method, or the issue of an additional Access Method; or
We impose, remove or adjust daily or other periodic transaction limits applying to the use of an Access Method.
We are not obliged to give you any advance notice if an immediate change to the Terms and Conditions is deemed necessary for the security of individual accounts. We will give you notice of any other changes in the Terms and Conditions in accordance with this Contract.
Changes in your circumstances
You must contact us immediately to inform us of a change in your particulars, including when:
your contact details change (including phone numbers, residential, delivery and email address);
you have changed your name, either first or last name;
you have been declared bankrupt or commit an act of bankruptcy;
you would like to appoint a person to act on your behalf under a power of attorney; or
your payment instructions change (for example you may wish to change your current Nominated Account details).
You must also tell us if you think there is any information that we should be aware of about your ability to comply with this Contract.
We may require written proof for changes in personal details.
Service of Notices
To the extent permitted by law, any notice or document given by us under this Contract or required by law or industry code or guideline may be given in writing, can be signed by any of our officers, and can be delivered personally, by pre-paid mail to the address you have nominated for delivery of notices and documents, or by email to your nominated email address, or if no such address has been nominated by you, your address as last known to us. Any such notice or document shall be deemed to have been received by you when it would have been delivered in the ordinary course of post or, if delivered by email, at the time it becomes capable of being retrieved by you at your email address.
Your Contract is subject to the laws of the State or Territory in which you are ordinarily a resident when you accept our offer.
You agree that any record of a Transaction provided to us by a Merchant is admissible evidence of the Transaction and of the amount shown and that, unless the contrary is established, it is conclusive evidence.
Further, you also agree that any statement (including, but not limited to, a statement of account or a default notice) that has been given to you by us or a person acting on our behalf, is admissible evidence of that fact or matter in the statement and that, unless contrary evidence is established, it is conclusive evidence.
Assignments of rights and disclosures
This Contract cannot be assigned by you without our prior written consent.
You authorise us to assign, transfer or otherwise deal with our rights under this Contract without the need to obtain further consent from you. This will not affect your rights or obligations under the Contract.
You consent to us disclosing on a continuous basis any information or documents relating to you we consider necessary to assign such rights, manage the assigned Contract and assess your total liabilities to us and any related entity.
Exercise of our rights
If we decide not to exercise a right, remedy or power, this does not mean we cannot exercise it later and you agree we are not stopped from doing so. In addition we are not liable for any loss caused by exercising or attempting to exercise a right remedy or power or not exercising it, whether or not it is caused by our negligence.
Closure of, or denial of, access to your Account
You may request that your Account be closed by:
Giving us notice in writing or contacting us; and
Paying any Outstanding Balance in full, including Transactions, and fees and charges not yet shown on your Account.
If you request that we close your Account:
No further Transactions will be permitted; and
your obligations under this Contract will continue until you pay us the total amount you owe us (including fees and charges and other amounts you become liable to pay under the Contract and which are not yet debited to the Account).
We may decide at any time without prior notice and whether or not you are in default to:
Suspend your Account; or
Close your Account.
We will advise you if we do so. In either event:
you will not be allowed to make any further Transactions; and
you must continue to pay the Minimum Repayment Amount each month and, if relevant any Past Due Amount.
Subject to c), if we suspend your Account, you may continue to access information about your Account through our website. We will advise you when your Account is no longer suspended.
We may, at any time, deny access to your Account via our Website for any reason including suspected fraudulent use, non–compliance with the Terms and Conditions or if we consider a security issue has arisen which requires further investigation.
You are in default if:
The payment of a Minimum Repayment Amount is not made by the relevant Due Date; or
The Outstanding Balance of your Account exceeds the Account Limit; or
You do not comply with any other terms or conditions of this Contract; or
We believe, on reasonable grounds, that we were induced by fraud on your part to enter into this Contract; or
You make any materially false or misleading representation to us.
If you are in default we may send you a default notice specifying the details of the default, how it may be corrected, and how long you have to correct it.
If you do not remedy the default within the time allowed then all amounts you owe us (including amounts which have been accrued but not yet debited to your Account) will be immediately due and payable. We may exercise our rights under this Contract at law.
Enforcement expenses may be payable if you default. You must pay to us all reasonable enforcement expenses incurred by us or our agents in exercising our rights because you default. Enforcement expenses when charged are debited to your Account, and when we do they will be added to and form part of the Unpaid Balance.
Enforcement expenses may include reasonable solicitors’ legal costs and the reasonable expenses of our staff and our facilities reasonably incurred in relation to any enforcement.
Exclusions of Warranties and Representations
We do not warrant that recognised Merchants will accept Purchases. You should always enquire beforehand before selecting goods or services.
We do not accept any responsibility should a Merchant refuse to accept or honour the Transaction.
Unless the law requires, we are not responsible for any defects in the goods and services acquired by you through the use of the Account. You acknowledge and accept that all complaints about these goods and services must be addressed to the Merchant who provided or sold those goods and services. Even if you make a complaint or dispute regarding a Transaction you must still pay us all amounts and charges charged to your Account. However, if you dispute a transaction made using your Account within 30 days of that Transaction, in certain circumstances, and after due process and investigation, we may seek a reversal of the Transaction on your behalf (for example, where you did not receive the goods or services paid for). This involves the “charge back” or debiting of the Transaction from the Merchant’s account with its financial institution, and a crediting of that amount to your Account.
You agree that all statements made, information and documents provided in connection with the application to us for the Account and all representations which you have made or may make to us whilst the Account is open are true and correct. You acknowledge that we have relied upon the correctness of those statements, documents or representations in entering into the Contract and will continue to do so in our dealings with you.
You have certain rights at law which cannot be limited or excluded. Nothing in the Terms and Conditions limits or excludes those rights, however our liability is limited to the maximum extent permitted by law.
If any provision of the Contract is or becomes invalid, unenforceable or breaches any mandatory law or applicable code then it is deleted and will not affect the remaining parts of the Contract.
Loss or damage if you breach your Contract
Subject to the Terms and Conditions and in addition to any rights we have to recover the Outstanding Balance of your Account, you agree to pay us for any loss, damage or costs we might have if:
you breach any law or regulation that applies to your Account or Transactions;
you do not use your Account correctly;
you breach your Contract; or
we are not responsible for any loss is if a Password is stolen or misused except where we agree in the Terms and Conditions or where by law or applicable code you are not responsible for any loss.
Appointment of signatories and attorneys
You can appoint a signatory or another person (attorney) under power of attorney to act on your behalf and access your Account. We may require the signatory or attorney to sign our prescribed forms before they can access your Account. We will require satisfactory documentary evidence of the attorney’s appointment before we can allow the attorney to access your Account. We can refuse to accept any instructions from any signatory or attorney.
Interception and recording of communications
You agree and acknowledge that we can intercept, record, read or view by any means any communication you may have with or make to us by any means. Communications include telephone calls, emails and any other form of electronic or wireless communication.
Anti-Money Laundering and Counter-Terrorism Financing
You acknowledge that:
we are subject to various Anti- Money Laundering and Counter-Terrorism Financing laws (AML/CTF) which include prohibitions against any person dealing with the proceeds or, or assets used in, criminal activity (wherever committed) and from dealing with any funds or assets of, or the provision of finance to, any person or entity involved (or suspected of involvement) in terrorism or any terrorist act; and
the AML/CTF laws may prohibit us from offering services to, or entering into, or conduction Transactions with you.
That we are not required to accept or execute any instruction, or take any other action under, or in connection with, the Contract if we are not satisfied as to your identity, or where we suspect on reasonable grounds that by doing so we may breach the AML/CTF laws;
That we may delay, block or refuse to release any monies on your instructions, if we believe on reasonable grounds that to do so may breach any law in Australia or of any other country, including the AML/CTF Laws; and
That we will incur no liability to you for any loss you suffer (including consequential loss) however caused by reason of any action taken or not taken by us contemplated in paragraph b) (i) and (ii).
You agree to provide all information and documents to us which we reasonably require to comply with any law in Australia or any other country, including the AML/CTF Laws and agree that we may disclose information which you provide to us, or about Transactions you conduct, or seek to conduct, with us where we required to do so by any such laws. You undertake that the payment of monies in accordance with this Contract or any instructions given by you will not breach the AML/CTF laws and you agree to indemnify us against any loss arising where you breach this undertaking.
No set off of counterclaim
You agree to make all payments you owe us under the Contract in full, without any set-off or counterclaim. This means that you cannot deduct anything that you claim we owe you, or could in the future owe you.
Feedback and complaint management
You may contact us with your feedback including any complaints by:
Emailing us at firstname.lastname@example.org
Calling our customer service team on (02) 82942345
Clicking on the contact us button in the Customer Centre
We will process your complaint as per our complaints policies and procedures.
If your complaint cannot be resolved promptly, our Complaints Officer will take responsibility and work with you to resolve the matter. A final written response will be provided within 45 days.
If you remain dissatisfied with the outcome and would like an independent review of the complaint and the result you can refer your complaint to:
Financial Ombudsman Service (FOS)
Phone: 1300 780 808
Mail: GPO Box 3, Melbourne, VIC, 3001
Terms of Service – Australia
LAST UPDATE: 27 NOVEMBER 2018
- Afterpay allows you to pay for your purchase over 4 equal instalments due every 2 weeks.
- You must be over 18 years old and be the authorised holder of an eligible debit/credit card to apply (see clause 2.4 for eligibility criteria).
- All orders are subject to Afterpay’s approval – for example, if you have any overdue payments, Afterpay will not be available to you. For more information on assessment and checks, see clause 6.2
- As part of our approval process, we may conduct a pre-authorisation on your nominated card, up to an amount of your first instalment – see clause 6.2(f)
- You can make repayments to Afterpay any time BEFORE the due date. Otherwise, Afterpay will automatically try process payments on the scheduled dates from your card. If a payment is not processed on or before the due date, late fees will apply – initial $10 late fee, and a further $7 if the payment remains unpaid 7 days after the due date.
- For each order below $40, a maximum of one $10 late fee may be applied per order. For each order of $40 or above, the total of the late fees that may be applied are capped at 25% of the original order value or $68, whichever is less. See Schedule 1
- If you won’t be able to pay us on time, please contact us as soon as possible. Please click here for more information regarding Hardship.
- The delivery/quality of goods and all refunds is the responsibility of the retailer where you make the purchase.
IMPORTANT INFORMATION REGARDING CARD PRE-AUTHORISATIONS:
As part of our approval process and our assessment as to whether or not you have the capability to fulfil your obligation to make future payments to Afterpay according to the Payment Schedule, we reserve the right to conduct a pre-authorisation of your Nominated Payment Source. This may involve placing funds in the account linked to your Nominated Payment Source on hold each time you make an online purchase, obtain a barcode for an in-store purchase or add a new Card to your Afterpay Account. For online purchases, we immediately instruct your bank to void this pre-authorisation transaction. For in-store, where a barcode is obtained but a purchase does not eventuate, we instruct the bank to void the pre-authorisation if the barcode is cancelled or expires. No funds are received by Afterpay during this process. We cannot guarantee the time it takes for your bank to process this action by us and make your funds available.
PLEASE NOTE: In most circumstances, relevant banks will void a pre-authorisation transaction within a few hours of the pre-authorisation transaction being conducted by Afterpay. However, in some observed instances, banks have taken up to fourteen (14) days to finalise this process. Unfortunately, we do not have any control or influence over the timing of your bank’s ability to finalise this process and Afterpay makes no representations on this subject matter.
1. Welcome to our Website
We set out below the terms and conditions of your use of, and access to, our Products. Please read these terms and conditions carefully, as they impose rules, obligations and other responsibilities on you in respect of your use of the Products.
1.1 Parties to this Agreement
This Agreement is a contract between you (‘you’ or ‘your’) and Afterpay Pty Ltd ACN 169 342 947 (‘Afterpay’, ‘we’, ‘us’, ‘our’). It sets out the terms and conditions that apply to your use of our Products. You agree that your acceptance of these terms and conditions, and ongoing use of our Products, shall constitute your acceptance of this Agreement.
If you do not want to be bound by this Agreement, you must not make a purchase using Afterpay Products.
1.2 Policies incorporated into this Agreement
We recommend that you store or print a copy of this Agreement (including all policies) for your records.To the extent of any inconsistency between this Agreement and any incorporated policy, the incorporated policy will prevail.
1.3 Changes to this Agreement
(a) Afterpay may amend this Agreement at any time for any reason including, for example, if we change the functionality of our Products, introduce new products, or as required by law. We will post the amended Agreement on our Website. Each time you place an Order you will be asked to agree to the then current terms of this Agreement. Please read this Agreement carefully each time you agree to its terms when placing an Order. If you do not agree with the changes, you may close your Afterpay Account in accordance with clause 3.4.
(b) We will not change any terms and conditions for an existing Order that has been accepted by us; the terms and conditions that will apply to an accepted Order (and any steps taken in relation to such Order, e.g., cancellation, refunds, etc.) are the terms and conditions that applied at the time you made the Order.
2. Our relationship
2.1 About us
(a) Our Products allow you to buy goods or services offered by online or in-store Retailers including a Retailer in an overseas jurisdiction permitted by Afterpay.
(b) By placing an Order with a Retailer and using our Products, you provide us with unconditional and irrevocable consent and direction to pay (or procure an Afterpay Affiliate to pay) the Retailer on your behalf in exchange for your agreement and obligation to repay or pay to us, as principal debtor, in accordance with this Agreement the agreed amounts (which may include any applicable taxes, duties or other related amounts charged by the Retailer) and on the dates outlined in your Payment Schedule, plus any additional applicable Fees, including Late Fees if you miss a repayment to us on or before the scheduled date, as set out in clause 4.
(c) You acknowledge that we do not have any control over, and are not responsible or liable for, the products or services purchased from Retailers paid for with our Products. We cannot ensure that a Retailer you are dealing with will complete the transaction.
(d) Afterpay does not:
(i) Enter into a partnership, joint venture, agency or employment relationship with you;
(ii) Guarantee the identity of any Retailer;
(iii) Determine if you are liable for any taxes; or
(iv) Collect or pay any taxes on your behalf that may arise from your use of our Products.
2.2 Your Consumer Rights
As a consumer, you have certain rights under consumer protection legislation (Consumer Rights). These Consumer Rights include:
(i) statutory guarantees under the Australian Consumer Law that goods will be of acceptable quality, match their description and be fit for any purpose made known to the consumer, and that services supplied will be provided with due care and skill and be reasonably fit for any specified purpose. When a statutory guarantee is breached, consumers are entitled to a range of remedies including, in some cases, damages for reasonably foreseeable losses; and
(ii) non-excludable implied warranties that financial services will be provided with due care and skill and that the services and any materials supplied in connection with them will be fit for any specified purpose.
Nothing in this Agreement is intended to exclude, restrict or modify any of your Consumer Rights, including by limiting our liability or imposing liability on you in a manner which would be considered unfair under the relevant consumer protection laws.
2.3 No warranty
(a) We do not give any express warranty or guarantee as to the suitability, reliability or availability of our Products, or of the content on our Website.
(b) Subject to your Consumer Rights set out in clause 2.2, we do not give any implied warranties or guarantees.
(c) Except as required by law, we do not guarantee continuous, uninterrupted or secure access to our Products, and we make no representations or warranties regarding the amount of time needed to complete processing of Orders or payment transactions.
2.4 Your eligibility
(a) To be eligible to use our Products you must:
(i) be an individual who is at least 18 years old;
(ii) be capable of entering into a legally binding contract;
(iii) have a valid and verifiable email address and Australian mobile telephone number;
(iv) provide a valid delivery address in Australia;
(v) have access to a Payment Method, for example by being the holder of a Card; and
(vi) in connection with your use of your Afterpay Account and our Products, use your real name and true and correct personal details and not use an alias or false identity (even with the consent of the person whose identity you are using) or provide false, inaccurate or misleading personal details or seek to establish a fake, untraceable or unverifiable Afterpay Account.
(b) By entering into this agreement, you represent and warrant that you are eligible to use our Products.
2.5 Transfers or assignments
(a) You cannot transfer or assign any rights you may have under this Agreement without our prior written consent, which must not be unreasonably withheld.
(b) We may transfer or assign this Agreement, and any right under this Agreement, to a third party without notice to you or your consent unless the assignment will detrimentally affect your rights under the Agreement (in which case we will seek your consent prior to assignment, which consent must not be unreasonably withheld). You agree that we may appoint third party collections agencies to collect any amounts owing to us under this Agreement without your consent. For the avoidance of doubt, you acknowledge that no assignment by us to another person of any amount you owe to us will require your consent or notice to you.
3. Your Afterpay Account
3.1 Creating your Afterpay Account
(a) We will create your Afterpay Account when you place your first Order with any of our Retailers. You may also create your Afterpay Account by visiting the Afterpay Website.
(b) Once your Afterpay Account is created, you will be prompted to choose and enter a secure password. You may subsequently access your Afterpay Account, using your secure password, through our Website.
(c) You are responsible for maintaining the security of your Afterpay Account details. We will not take responsibility for unauthorised access and use of your Afterpay Account unless we have failed to take reasonable steps to prevent such unauthorised access or use.
(d) You acknowledge and agree that if a person places an Order with a Retailer by using your Afterpay Account (whether with or without your authorisation), that person will be deemed to be you for the purposes of this Agreement and that will not (subject to clause 3.1(c)) affect your obligations under this Agreement, regardless of whether:
(i) we are or at any time become aware of that or the use of your Afterpay Account not being authorised by you;
(ii) there is a dispute, breach, defect or other issue in relation to the Order, the products or services subject to the Order or the associated sales contract or any other agreement between that person and the Retailer; or
(iii) any rights or claims that we or the Retailer may have against that person.
except to the extent any use of your Afterpay Account by such a person is due to our negligence, wilful misconduct or breach of this Agreement.
3.2 Your obligations to us as a holder of an Afterpay Account
By holding an Afterpay Account with us, you agree that you must:
(a) Pay any applicable Fees associated with your use of our Products and your Afterpay Account;
(b) Not provide us with any information that is false, inaccurate or misleading (including, without limitation, in relation to your identity or personal details or by using an alias or false identity, even with the consent of the person whose identity you are using or seek to establish a fake, untraceable or unverifiable Afterpay Account);
(c) Ensure any information about you, including your contact details, is true, current and complete. If your information changes, you must update it through your Afterpay Account via our Website;
(d) Provide to us in a timely manner all documentation relating to your identity, if requested by us;
(e) Not use your Afterpay Account or our Products for any unlawful, fraudulent or improper activity , including for any experimental, testing or research purposes or otherwise in a manner for which they have not been designed;
(f) Cooperate fully with us to investigate any suspected unlawful, fraudulent or improper activity on your Afterpay Account;
(g) Be aware of and pay any taxes that may apply to your use of our Products;
(h) Not permit others to use your Afterpay Account, or allow anyone else to have or use your account password details;
(i) Not use any technology (device, software or hardware) to damage, intercept or interfere with our Products;
(j) Immediately contact us if you believe that your Afterpay Account may be subject to an unauthorised transaction, account takeover or other type of fraudulent activity or security breach;
(k) Not create liability for us or cause us to lose (in whole or in part) the services of our Retailers;
(l) Authorise us to disclose Card-related profile and purchase behaviour information to third parties (including, without limitation, Visa and MasterCard) for the purpose of eliminating fraud and illicit behaviour; and
(m) Not open or use more than one Afterpay Account.
3.3 In-store payment via barcode
(a) If you wish to make an in-store purchase using Afterpay, you must create an Afterpay Account (new Afterpay customers), or log in to your existing Afterpay Account (existing Afterpay customers), and request authorisation to make an in-store purchase up to a nominated value via the Afterpay App.
(b) If your request is approved, Afterpay will promptly issue you with a barcode via the Afterpay App which you may use to make a single purchase with a Retailer who offers Afterpay in-store up to the nominated value.
(c) The barcode will be scanned by the Retailer to finalise your Afterpay purchase. Payments will be deducted from your Nominated Payment Source in accordance with your Payment Schedule.
(d) Once a barcode has been used to make an Afterpay purchase, it cannot be used again, even if the value of the purchase was less than the value of the barcode.
(e) Unused barcodes will expire.
(f) A barcode must only be used by you as the Afterpay Account holder. It is your responsibility to keep the barcode secure at all times from theft, fraud, misuse and/or unauthorised use.
(g) If the barcode is faulty, or has been lost or stolen prior to its expiry, you can contact us on 1300 100 729 and we will endeavour to cancel it unless it has been used already.
(h) To the extent permitted by law, and subject to clause 2.2, we will not be liable to you or anyone else for any losses suffered or incurred due to delay in receipt of, or for any lost or misdirected, barcodes sent to the email address you have provided, or for any losses suffered or incurred due to the theft, fraud, misuse or unauthorised use of the barcode, except to the extent that such losses arise as a result of our negligence, wilful misconduct or breach of this Agreement.
3.4 Closing your Afterpay Account
(a) You may request to close your Afterpay Account by contacting us directly. You may only request to close your Afterpay Account if:
(i) all amounts owing to us by you (including any Late Fees) have been paid in full to us; and
(ii) no disputes or refunds are in progress.
(b) You may not close your Afterpay Account to evade investigations of any nature.
(c) We may close your Afterpay Account for any reason, within our reasonable discretion. This Agreement will continue to apply to any Orders accepted prior to such closure until all amounts owing are received in full (including any Late Fees).
(d) Except as otherwise stated, this Agreement will be terminated once your Afterpay Account is closed. However, you will remain liable for all outstanding obligations related to the Afterpay Account even after it has been closed.
(e) We may immediately limit your access to our Products or suspend or close your Afterpay Account where we have reasonable cause to do so including, without limitation, where:
(i) we reasonably consider it necessary to do so in order to:
(A) protect the integrity of our systems or the Products;
(B) prevent fraud;
(C) limit the risk of money laundering or terrorism financing; or
(D) otherwise protect us against legal, regulatory or non-payment risk;
(ii) you do not pass our verifications or checks, including our pre-authorisation check described in clause 6.2(d);
(iii) we reasonably suspect, or are aware, that you have breached this Agreement in a material respect (including by failing to make any payment due under this Agreement by the payment due date or by providing us with false, inaccurate or misleading information or using your Afterpay Account or our Products in breach of this Agreement); or
(iv) we otherwise reasonably consider the activity associated with the Afterpay Account to be suspicious.
(f) We will use our best efforts to provide written notice to you before closing your Afterpay Account, in the circumstances described in clause 3.4(e) above, except where doing so may compromise any investigation related to your breach of this Agreement or unlawful or improper conduct. Where we close your Afterpay Account in accordance with clause 3.4(e), this Agreement will be terminated, and all amounts owed by you to us will immediately become payable to Afterpay.
(g) Despite clause 5(f), where your Afterpay Account has been closed for any reason, our respective obligations in relation to product returns in clause 5 will only continue until:
(i) all amounts you owe to us have been paid to us; or
(ii) the date which is 120 days after your last Order whichever is sooner. After that time, the Retailer will be solely responsible for processing all product returns and associated refunds.
4. Orders, payments and billing
4.1 Order Confirmation and Payment Schedule
(a) All Orders which you place with Afterpay are subject to approval by Afterpay, in our reasonable discretion. We may choose not to approve an Order or provide a Product to you, or may cancel an approved Order before the goods or services are delivered or supplied, if:
(i) we reasonably consider this necessary in order to:
(A) protect the integrity of our systems or the Products;
(B) prevent fraud;
(C) limit the risk of money laundering or terrorism financing; or
(D) otherwise protect us against legal, regulatory or non-payment risk;
(ii) you do not pass our verifications or checks, including those described in clause 6;
(iii) we reasonably suspect, or are aware, that you have breached this Agreement in a material respect (including by failing to make any payment due under this Agreement on the payment due date);
(iv) an Order is made with a merchant in a different jurisdiction that is not permitted by Afterpay; or
(v) we otherwise reasonably consider the Order to be suspicious.
(b) If we cancel an approved Order:(i) we will apply a full refund of any amounts you have paid to us to your Nominated Payment Source or (if that is not possible) to any other Card that you have provided us details of, and will cancel any future payments related to that Order. In the event the approved Order is cancelled because a chargeback has been incurred by Afterpay in relation to a payment for the approved Order, that payment will not be refunded by Afterpay. Any return of funds in that event will be as between you and your issuing bank. The Retailer will not be obliged to deliver the goods (or provide the services) the subject of the Order, unless required to do so by law;
(ii) you will have no obligation to make any further payments to us, or any other ongoing relationship with us, with respect to that Order; and
(iii) if you wish to proceed with the purchase from the Retailer, the Retailer may accept an alternative payment method in its discretion, or if required to do so by law.
(c) Once we approve your Order, you will receive an email from us with confirmation of receipt of your Order and a Payment Schedule.
(d) You agree to ensure that payment(s) are made in accordance with the Payment Schedule. You may make early payments through your Afterpay Account, otherwise Afterpay will automatically process payments in accordance with the due dates stated on the Payment Schedule. You authorise Afterpay to process such payments using the Payment Method details provided by you. If an Automatic Payment fails on any of the dates specified in your Payment Schedule, Afterpay reserves the right to re-attempt to process the payment at a later time or date.
4.2 Automatic Payments
(a) An ‘Automatic Payment’ is a payment, through the Payment Method you have chosen, that we will automatically charge directly to your nominated Card (‘Nominated Payment Source’) on a one-time or regular basis in agreed upon amounts as outlined in your Payment Schedule. You will have the option to select a preferred Payment Method and Nominated Payment Source when your Afterpay Account is being created. You can update or change your preferred Nominated Payment Source or Payment Method at any time via your Afterpay Account.
(b) Subject to the other terms of this Agreement, You hereby expressly consent to, authorise and instruct Afterpay to deduct Automatic Payment amounts from your Nominated Payment Source for the amounts and on those scheduled dates set out in your Payment Schedule. You acknowledge that you are giving us the ability to collect or reverse variable payment amounts from or to your Nominated Payment Source, in accordance with your Payment Schedule and the terms of this Agreement.
(c) You are responsible for ensuring that you have sufficient funds in your Nominated Payment Source available to make Automatic Payments on the dates specified in your Payment Schedule. You are liable for any fees or charges imposed by your Nominated Payment Source, except to the extent that such fees or charges arise as a result of our error or system failure. If any fees or charges are imposed as a result of our error or system failure, please provide us with a copy of the relevant records, and we will reimburse you for the relevant fees or charges.
(d) If an Automatic Payment fails (for example, if your Nominated Payment Source is a credit or debit card which has expired), Late Fees may apply unless you otherwise make the scheduled payment on or before the relevant due date. You authorise us to satisfy any monetary liability you owe us by:(i) Debiting your Nominated Payment Source at a later time or date;
(ii) Debiting any other Card which you have provided details of;
(iii) Offsetting the payment amount against any amounts we may owe to you; or
(iv) Any other legal means.
Please see clause 4.3 below for more information regarding Late Fees.
4.3 Late Payments
(a) If you fail to pay any amounts according to the Payment Schedule, Late Fees will apply on each payment that is due but not received. For the avoidance of doubt, Late Fees will not be applied until the day immediately following the day that the payment is due.
(b) We may, at our sole discretion, reasonably delay the application of, or waive wholly or partly, any Late Fee. If Late Fees are or may be incurred as a result of Afterpay’s error, please let us know, and we will waive or refund such fees, as relevant.
(a) Charges or Fees, if any, payable by you for the use of our Products or your Afterpay Account will be set out in Schedule 1 to this Agreement.
4.5 Cross Border Transactions
Where you use our Products to make a Cross Border Transaction, we will convert what the Retailer charges for the goods into your local currency using a retail exchange rate selected by Afterpay at our discretion to determine the Original Order Value and the amounts payable by you in accordance with your Payment Schedule. The exchange rate used will change regularly to reflect the currency fluctuations in the foreign exchange market.
No set up fees or foreign exchange commission will be applied to the exchange rate applied to perform the conversion.
(a) No interest charges are payable by you for the use of our Products.
4.7 No set off
Notwithstanding any other provisions of this Agreement, you must make all payments in accordance with the Payment Schedule and pay all other amounts in full to us under this Agreement without any set-off, withholding or reduction for any reason whatsoever, including any existing or future act, omission or default by us.
(a) If you decide to return goods to a Retailer, which have been purchased using our Products, and request a refund, or a return and refund are otherwise accepted by the Retailer or permitted by law, you will directly arrange the return with the Retailer, ensuring that the goods are returned according to the Retailer’s returns policy or other instructions or your rights at law.
(b) It is your responsibility to notify the Retailer if you intend to return any goods. The return must be completed within the period specified and in the manner required by the Retailer’s returns policy or as otherwise permitted by the retailer.
(c) Unless we are notified by a Retailer that a return and refund is in progress, we will continue to process any Automatic Payments in accordance with the dates set out in your Payment Schedule.
(d) Until such time that the Retailer has confirmed the return of the goods and has issued a refund to us for those goods, you will remain liable to us for the full payment of the goods, in accordance with your Payment Schedule.
(e) Once the Retailer has issued a refund to us for the goods, we will issue a refund to your Nominated Payment Source (or, if that is not possible, to any other Card that you have provided details of) and/or adjust your Payment Schedule appropriately (including to reduce or cancel any future payments, if necessary). Please note, in the event of partial refunds, refund amounts are taken off the last payment/s first. If the refund is processed to your expired or cancelled card, you will need to obtain the returned funds by contacting your financial institution.
For example, if you make a $400 purchase using Afterpay and the retailer approves a $250 refund, we will cancel your 3rd and 4th instalments of $100, and amend your 2nd instalment to $50. Your new payment schedule will become 2 payments (instead of 4) of $100 & $50. If you had already paid 2 instalments of $100 each, a refund of $50 would be applied to your card and the remaining 2 instalments would be cancelled.
When a Retailer issues a refund for a Cross Border Transaction, Afterpay will use the original retail exchange rate (used at the time the order was placed) to determine the refund amount to apply to your Nominated Payment Source for the relevant goods.
For example, if a New Zealand Retailer charged 100NZD which was converted to $96 as the Original Order Value, if the Retailer issues a refund for 50NZD, your order total and Payment Schedule will be adjusted by $48.
(f) Where you wish to return a product 120 days or more after the purchase date, we will no longer have any involvement in the product return process (i.e. the Retailer will provide any agreed refund directly to you).
6. Assessment and checks
(a) We reserve the right to assess, and determine whether to accept or cancel, each Order in accordance with clause 4.1.
6.2 Repayment capability and identity checks
(a) We reserve the right to verify your identity, including if required under the Anti-Money Laundering and Counter-Terrorism Financing Act. Verifying your identity does not mean we will approve your order (see clause 4.1(a) for other variables that are considered).
(b) You agree to provide any information or documentation reasonably requested by Afterpay or a Retailer to verify your identity in connection with your Afterpay Account or Orders.
(c) You authorise us to make, directly or through third parties, any enquiries we consider necessary to verify your identity and assess your capability to make payments according to the Payment Schedule in relation to all Afterpay Orders. This may include ordering a credit report, performing other repayment capability checks and verifying information you provide against third party databases.
(e) You authorise Afterpay (or any third parties providing services on behalf of Afterpay) to disclose to third parties, to the extent required by any applicable laws or regulations, any information in relation to you or your Afterpay Account. In addition, you acknowledge that Afterpay reserves the right to report any negative activity on your Afterpay Account (including late payments, missed payments, defaults or chargebacks) to credit reporting agencies.
(f) As part of our approval process and our assessment as to whether or not you have the means to fulfil your obligation to make payments to Afterpay according to the Payment Schedule, we reserve the right to conduct a pre-authorisation of your Nominated Payment Source. This may involve placing funds in the account linked to your Nominated Payment Source on hold each time you make an online purchase, obtain a barcode for an in-store purchase or add a new Card to your Afterpay Account.
For online purchases:
(i) the pre-authorisation amount will not exceed your first instalment (plus one cent) owed to us for that purchase; and
(ii) we immediately instruct your bank to void this pre-authorisation transaction.
For in-store purchases:
(iii) the pre-authorisation amount will not exceed 25% of the value of the barcode (plus one cent); and
(iv) where a barcode is obtained but a purchase does not eventuate, we instruct the bank to void the pre-authorisation transaction upon expiry or cancellation of the barcode.
No funds are received by Afterpay during the pre-authorisation process.
(g) We cannot guarantee the time it takes for your bank to process both the pre-authorisation transaction and our voiding of that transaction.
7. Our Intellectual Property
(a) Our Website and all content on our Website are the exclusive property of Afterpay. The information on our Website is for information purposes only and is subject to change without notice.
(b) You must not copy, imitate, modify, alter, amend or use without our prior written consent any URLs representing our Website, or any of our content, logos, graphics, icons or other content published on our Website or in our printed media.
8. Complaints and disputes
8.1 Disputes between you and a Retailer
(a) If you have a dispute with a Retailer, you should file a dispute through direct contact with the Retailer.
(b) Whilst Afterpay will endeavour to facilitate communication between you and the Retailer to enable a resolution to all disputes, the outcome of your disputes with Retailers will not affect Afterpay’s rights and remedies under this Agreement or your obligation to meet any payments due to us, except as expressly provided in clause 5.
8.2 Disputes between you and us
(a) We aim to:
(i) Acknowledge receipt of all complaints within 5 business days; and
(ii) Resolve all complaints within 21 days.
(b) If you wish to raise a dispute or submit a complaint to us, you should do so by contacting us using the details listed below. Disputes should be raised with us as soon as possible.
Phone: 1300 100 729
Mail: GPO Box 2269, Melbourne, VIC 3001, Australia
(c) We may request additional documentation from you to assist us in resolving any complaints or disputes, and you must provide all reasonable assistance to us to facilitate us in resolving any complaints or disputes.
(d) Where we cannot resolve a dispute within 21 days, we will notify you of the reason for the delay as well as an indication of when we expect to resolve the complaint or dispute.
(e) If you are not satisfied with the outcome of your complaint after it has been through our internal disputes process above, you can contact the Australian Financial Complaints Authority (AFCA) using the contact details listed below.
Phone: 1800 931 678 (free call)
In writing to: Australian Financial Complaints Authority
GPO Box 3, Melbourne VIC 3001
9. Notices and Communications
9.1 How we will communicate with you
(a) This Agreement and any other agreements, notices or other communications regarding your Afterpay Account and/or your use of our Products may be provided to you electronically.
(b) You agree to receive all communications from us in electronic form. Communications will be posted on our Website (where permitted under this Agreement) and/or sent to your email address.
(c) Alternatively, we may choose to give notice to you by:
(i) serving it personally at, or sending it by post to, your nominated contact address listed on your Afterpay Account; or
(ii) sending it to you via other electronic methods of communication using contact details listed on your Afterpay Account (including text messages).
(d) Where a notice is served personally, service of the notice is taken to be effected when delivered. Where a notice is sent by post, service of the notice is taken to be effected on the fourth day after the date of postage. Where a notice is sent by electronic mail, or through other electronic means, service of the notice is taken to be effected on the day after the day on which it is sent, unless we receive notification that delivery has failed.
(e) You consent to us using the contact details you have provided to us to:
(i) contact you on an ongoing basis for marketing purposes whether by email, SMS, phone or otherwise (unless you have notified us that you do not wish to receive such communication); and/or
(ii) contact you in relation to your Afterpay Account and/or our Products.
(f) You acknowledge that we (or any third party providing services on behalf of us) may monitor or record telephone conversations or electronic communication for quality control and training purposes or for Afterpay’s own protection. Afterpay does not provide any guarantee that any such monitoring or recording will be retained or retrievable.
9.2 How you can communicate with us
Except as explicitly stated otherwise, any notices to us should be given by mail to:
Afterpay, GPO Box 2269 Melbourne, VIC 3001, Australia
(b) Other communications
If you wish to contact us for any other reason, you can do so on the details below:
Phone: 1300 100 729
Mail: GPO Box 2269, Melbourne, VIC 3001, Australia
10.1 System Outages
(a) Access to our Products or our Websites may occasionally be unavailable or limited due to hardware or software failure or defects, overloading of system capacity, damage from natural events or disasters or disruptive human activity, interruption of power systems, labour shortages or stoppages, legal or regulatory restrictions as well as other causes outside of our control.
(b) To the extent permitted by law, and subject to clause 2.2, Afterpay will not be liable for any loss or damage which you may incur as a result of our Products or our Website being unavailable.
10.2 Governing Law and Jurisdiction
(a) This Agreement is governed by the law in force in New South Wales, Australia. Each party irrevocably submits to the non-exclusive jurisdiction of courts exercising jurisdiction in New South Wales, Australia.
10.3 Limitation of Liability
(a) To the full extent permitted by law, and subject to clause 2.2:
(i) Afterpay’s liability for all claims arising under or related in any way to this Agreement no matter how arising, and whether in contract, tort (including negligence), or otherwise, will not exceed the total value of any affected Order(s), including any payments and Late Fees;
(ii) Except for claims arising in respect of clause 10.5, your liability for all claims arising under or related in any way to this Agreement no matter how arising (including the indemnity in clause 10.4), and whether in contract, tort (including negligence), or otherwise, will not exceed the total value of any affected Order(s), including any payments and Late Fees; and
(ii) Neither party (including in relation to Afterpay, its related bodies corporate, or any third party providing services on behalf of Afterpay), will be liable for any Consequential Loss arising under or related in any way to this Agreement no matter how arising and whether in contract, tort (including negligence) or otherwise.
(b) Afterpay and its related bodies corporate, or any third party providing services on behalf of Afterpay, and the directors, employees, officers, agents and representatives of them, will not, to the extent permitted by law and subject to clause 2.2, be liable for any loss or damage (including any direct, indirect or Consequential Loss or damage) you or any third party may incur from your purchase or use of any goods or services from a Retailer, except to the extent that we cause such loss or damage (in which case, our liability to you is limited as set out in clause 10.3(a) above). You acknowledge that any consumer-related claims you may have in respect of the goods or services purchased from a Retailer will be a matter between you and the Retailer, subject to any obligation on us to process refunds and cancel future payments in accordance with this Agreement and our agreement with the Retailer.
(c) To the extent permitted by law, a party’s liability to the other party under or in connection with this Agreement is reduced to the extent, if any, to which the other party’s acts or omissions cause or contribute to its own loss or damage.
(d) The parties will take all reasonable steps to mitigate any loss incurred by them under this Agreement.
(a) You are responsible to Afterpay and any related companies of Afterpay to the extent they are involved in the provision of the Products for any loss, costs (including reasonable legal fees), expense or damage they suffered or incurred: (i) in connection with any claim or demand made by any third party due to or arising out of your breach of this Agreement, or your breach of any law or of the rights of a third party relating to your use of our Products or Website; and (ii) as a direct or indirect consequence of unauthorised users accessing your account as a result of your negligence. To the extent that clause 10.4(a) gives a non-party rights, Afterpay contracts as trustee of the rights given under that clause.
(b) Your liability under clause 10.4(a) will be reduced proportionately to the extent that Afterpay, its contractors or agents: (i) caused or contributed to the relevant claim, demand, loss or damage; or (ii) failed to take reasonable steps to mitigate the relevant claim, demand, loss or damage.
10.5 Breach relating to misuse of the Products
(a) You acknowledge that it is imperative that Afterpay be able to rely on:
(i) the information you provide to us;
(ii) the identity that you use; and
(iii) that your use of your Afterpay Account and our Products be for the intended purpose.
(b) You acknowledge that a breach by you of any obligation in this Agreement in relation to the matters in clause 10.5(a) (including, without limitation, a breach of clauses 2.4 or 3.2(b) and 3.2(e) of this Agreement) would cause significant detriment to Afterpay and its related bodies corporate. You agree that monetary damages will not be sufficient to remedy that detriment, or may otherwise be incapable of being ascertained, and irrevocably consent to Afterpay or any of its related bodies corporate seeking and obtaining injunctive relief to obtain relevant documents from you and to prevent such breach, or orders of specific performance to compel compliance, in addition to any other remedies available at law or in equity.
(c) If Afterpay reasonably considers that you have breached an obligation under this Agreement in relation to your identity, the information you provide to us and/or your use of your Afterpay Account and our Products, you agree, on request from Afterpay, to provide Afterpay with copies of all documents, notes or communications in relation to such alleged breach.
(d) This clause 10.5 survives termination of this Agreement.
Afterpay, we, us or our means Afterpay Pty Ltd ACN 169 342 947, and can include an Afterpay Affiliate where applicable.
Afterpay Account means an account that Afterpay creates to uniquely identify you and to enable you to use our Products.
Afterpay Affiliate means a related body corporate or related entity of Afterpay, including one in another jurisdiction.
Agreement means this agreement and its schedule, together with any policies and documents incorporated by reference.
Card means any Australian card issued by Visa or MasterCard, excluding Gift Cards and other pre-paid cards.
Consequential Loss means any loss, damage or costs incurred that is:
(i) indirect or consequential; and
(ii) any loss of revenue; loss of income; loss of business; loss of profits; loss of production; loss of or damage to goodwill or credit; loss of business reputation, future reputation or publicity; loss of use; loss of interest; losses arising from claims by third parties; loss of or damage to credit rating; loss of anticipated savings and/or loss or denial of opportunity other than in respect of any such losses incurred by Afterpay directly in respect of this Agreement.
Consumer Rights has the meaning given in clause 2.2.
Fees means any fees charged by us, as described in this Agreement, including Late Fees.
Cross Border Transaction means an Afterpay Purchase between You and a Retailer in an overseas jurisdiction permitted by Afterpay.
Gift Card means a stored value or prepaid card which, when activated:
(a) can be used to purchase services or merchandise from suppliers;
(b) may not be redeemable for cash;
(c) may be capable of being used on multiple occasions;
(d) is marketed solely as a gift card;
(e) is not a component of another financial product; and
(f) prominently displays or permits the prominent display on the card or mechanism either:(i) the expiration date; or (ii) the number of months following purchase that such card or mechanism expires (along with room to write the purchase date on such card or mechanism).
For the avoidance of doubt, Gift Card includes both open loop and closed loop pre-paid cards.
Late Fees mean the fees set out in Schedule 1.
Nominated Payment Source has the meaning given in clause 4.2(a).
Order means a request submitted by you to us, to use an Afterpay Product to pay for goods or services offered by a Retailer.
Original Order Value means the total cost of your Order at the time it is approved by Afterpay (before any refunds may be applied).
Payment Method means any payment method accepted by Afterpay from time to time.
Payment Schedule means, in relation to an Order, a list of payment amounts that Afterpay is entitled to receive from you, and the relevant due dates of each payment.
Products mean the payment products and associated services offered by Afterpay from time to time.
Retailer means an online or in-store merchant with which Afterpay or an Afterpay Affiliate has a merchant agreement and whose goods or services may be purchased by you using our Products.
Website means www.afterpay.com, www.afterpay.com.au, www.secure-afterpay.com.au and any other website operated by Afterpay, including the Afterpay App.
You (or Your) means the person identified when an Afterpay Account is created. If:
(a) such person does not exist, or
(b) the name or details are used by someone who is not in fact that person, or
(c) is otherwise provided dishonestly or fraudulently, then You (or Your) means the person who clicks to accept these terms.
Late Fee: $10 Late Fee if a payment is due from you but not received by Afterpay in accordance with the Payment Schedule, with a further $7 Late Fee added seven days after the payment is due if the payment is still unpaid.
Afterpay has introduced caps on Late Fees (effective for all payments due on or after 30 June 2018):
(a) For each Order with an Original Order Value below $40 – a maximum of one $10 Late Fee may be applied;
(b) For each Order with an Original Order Value between $40 and $272 (inclusive) – the aggregate sum of the Late Fees applied in relation to the Order will not exceed 25% of the Original Order Value; and
(c) For each Order with an Original Order Value above $272 – a maximum of $68 (i.e. 4 x $17) of Late Fees may be applied.
For example, a $25 Order will have a maximum of one $10 Late Fee applied, a $108 Order will have up to $27 (25% x $108) of Late Fees applied, and a $500 order will have up to $68 of Late Fees applied (maximum limit). Once the cap is reached, no additional Late Fees will be applied to payments associated with that Order.
Please note: there are no partial Late Fees, so all applied Late Fees are either $10 or $7 subject to the caps above.
Other fees or charges: Nil
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