The Company provides the “EFFI” online customer relationship management system for mortgage brokers. Use of the EFFI is subject to these Terms of Service.
The following terms are used regularly throughout these Terms of Service and have a particular meaning:
- ABN means Australia Business Number.
- Account means a registered account within the Platform.
- API means Application Programming Interface.
- Authorised User means any user of the Platform authorised access to an Account by the Broker.
- Broker means a mortgage broker that is registered to the Platform and responsible for paying the Fees (which if in doubt shall be the named Account holder).
- Broker Data means any images, information, files, documents or other data that is uploaded or imported into the Platform by a User or on behalf of a User by any party but does not include any derivative data (such as analytics).
- Business Day means a day (other than a Saturday, Sunday or public holiday) on which banks are open for general banking business in New South Wales, Australia.
- Company means the EFFI Technologies Pty Ltd ACN 635 443 088.
- Confidential Information means any written or verbal information that:
- Any information deemed as confidential under these Terms of Service;
- A party informs the other party that it considers it confidential and/or proprietary;
- A party would reasonably consider to be confidential in the circumstances; and
- Is Personal Information;
but does not include information that a party can establish:
- Was in the public domain at the time it was given to that party;
- Became part of the public domain, without that party’s involvement in any way, after being given to the party;
- Was in party's possession when it was given to the party, without having been acquired (directly or indirectly) from the disclosing party; or
- Was received from another person who had the unrestricted legal right to disclose that information free from any confidentiality obligation.
- Corporations Act means the Corporations Act 2001 (Cth).
- Customer Data means any images, information, files, documents or other data relating to the End Customer that is uploaded or imported into the Customer Portal and accessible by the Broker, including (without limitation) loan documentation and bank statements.
- Customer Portal means the digital platform accessible by End Customers to interact with the Broker via the Account.
- Customer Terms and Conditions means the separate terms and conditions to be agreed by End Customers to access and use the Customer Portal.
- Dashboard means the dashboard within an Account that shows a summary of relevant information linked to the Account, including (without limitation) leads, reviews, ratings, statistics and analytics.
- End Customer means customers of the Broker that may interact with Brokers via the Customer Portal.
- Fee means any fees charged by the Company to the Broker with respect to the Platform, as advertised on the Site and/or within the Platform from time-to-time.
- GST has the meaning given by the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
- Intellectual Property means all copyright, patents, inventions, trade secrets, know-how, product formulations, designs, circuit layouts, databases, registered or unregistered trademarks, brand names, business names, domain names and other forms of intellectual property.
- Mobile Application Marketplace means an online marketplace for access to the Platform and other applications for mobile devices, such as the App Store.
- Personal Information has the same meaning as in the Privacy Act.
- Platform means the “EFFI” digital platform developed by the Company and accessible from the Site and/or Mobile Application Marketplace from time-to-time.
- Privacy Act means the Privacy Act 1988 (Cth).
- Referral Credit means the credits earned by the Broker from successfully referring an End Customer to a Third Party Service Provider, as advertised on the Site and/or within the Platform from time-to-time.
- Site means https://www.effi.com.au/ and any other URL where the Company makes the Platform available from time-to-time.
- Subscription Fee means the Fee charged to the Broker on an ongoing basis to access and use of the Platform.
- Terms of Service means the terms and conditions of using the Platform, as updated from time-to-time, which can be found at the Site.
- Third Party Service means an online third-party service that the Broker holds an account with.
- Third Party Service Provider means any third-party service provider that may assist the End Customer, such as conveyancing and utility services.
- User means any Broker or Authorised User.
1.1 The licence granted under these Terms of Service shall be ongoing until terminated in accordance with these Terms of Service.
The Broker agrees:
- To use the Platform in accordance with these Terms of Service;
- If creating an Account, that it is authorised to establish, maintain and pay for the Account;
- To pay the Fees as and when they fall due; and
- That it is responsible for the conduct of each Authorised User it authorises, who each must agree to and comply with these Terms of Service.
The Broker agrees that all use of the Platform is subject to these Terms of Service and must immediately cease to use the Platform if the Broker can no longer agree or adhere to these Terms of Service.
The Company may suspend an Account or restrict the access of any Broker that breaches these Terms of Service.
Using the platform
- To access and use the Platform:
- The Broker's Account must be set up and registered; and
- Each User must register with the Platform, either as a Broker or as an Authorised User, as the case may be.
- The Broker is responsible for inviting selected Authorised Users from within the Account to register with the Platform.
- The Broker must ensure that all information entered into the Platform is complete, accurate and up-to-date at all times. The Broker can update their information at any time within their Account.
- The Company may permit or deny the Broker an Account in its absolute discretion (although the Broker may generally obtain an Account by completing registration and accepting these Terms of Service).
- The primary purpose of the Platform for the Broker to efficiently manage their relationship with End Customers.
- The Company shall provide the Broker with access to and use of the features as made available within the Platform from time-to-time, which may include (without limitation):
- Customising and branding the Broker’s Account;
- Interacting and communicating with End Customers;
- Creating and sharing branded digital advertisements;
- Integrating Third Party Services via the Company’s APIs;
- Receiving and sharing reviews; and
- Viewing analytics, insights and other metrics from within the Dashboard.
- The Broker is responsible for inviting End Customers from within the Account to register with the Customer Portal.
- Access and use of the Customer Portal by End Customers shall by subject to agreeing to the Customer Terms and Conditions.
- The Company accepts no responsibility for any interaction between the Broker and any End Customer, whether via the Platform or otherwise.
Third Party Services
- The Broker agrees and warrants that they have authority to connect the Platform to any Third Party Services.
- The Broker is wholly responsible for ensuring its own compliance with the terms and conditions of any Third Party Service in respect of any connection with the Platform.
- The User agrees and acknowledges that the Company is not responsible or liable for any Broker Data that may be introduced into the Platform from a Third Party Service.
- The Broker may earn Referral Credits from introducing End Customers to Third Party Service Providers.
- The Broker agrees and acknowledges that to earn a Referral Credit:
- The Third Party Service Provider must be linked to their Account; and
- The introduction to the Third Party Service Provider must occur via the Platform.
- Any Referral Credits earned by the Broker in accordance with paragraph (b) above will be credited to the Broker’s Account within the timeframe notified to the Broker by the Company or otherwise agreed by the parties from time-to-time.
- The Broker acknowledges and agrees that:
- During the term of these Terms of Service, Referral Credits may only be used to pay Fees (including the Subscription Fee) or any other services provided by the Company in the Broker’s complete discretion; and
- Referral Credits can only be withdrawn and paid as cash from an Account upon the valid termination of these Terms of Service and/or cancellation of the Broker’s Account.
- In the circumstances of clause 2.5(d)ii above, the Company agrees to pay the Broker the applicable amount in cash equivalent to the value of the unused withdrawn Referral Credits to the Broker’s nominated Australian bank account within 30 days of the effective date of termination.
The Platform is a paid service and the Brokers agrees to pay the applicable Fees.
The primary Fee to use the Platform shall be the Subscription Fee, which is payable in advance for any paid subscription.
The Broker agrees to provide a credit card through the Platform which will be charged monthly in advance for the Subscription Fee, unless agreed otherwise by the parties. Without provision of a valid credit card, the Broker agrees that it has no right to access a paid subscription.
Further and separate to the Subscription Fee, other Fees shall apply with respect to the Broker’s use of the Platform such as obtaining bank statements and sending messages with respect to End Customers.
Variation to Fees
- The Company reserves the right to introduce or change any Fees from time-to-time by giving the Broker no less than 14 days’ written notice. Any new or changed Fees will apply at the end of Broker’s current billing cycle after the Broker has been given such notice.
- If the Broker does not accept a change to any Fees, then it can simply terminate its Account and stop using the Platform.
Currency and Invoices
- All Fees are payable in Australian dollars, however transactions may be processed in an equivalent foreign currency (such as US dollars).
- For Brokers in Australia, GST is applicable to any Fees charged by the Company. Unless expressed otherwise, all Fees shall be deemed inclusive of GST.
- The Company will provide the Broker with a Tax Invoice for any payments.
RefundsNo refunds on Fees are offered except where required under law or as agreed at the absolute discretion of the Company.
- The Company may suspend the Broker’s Account should any Fees be outstanding to the Company at any time. This may, in time, result in termination of access to the Platform for all of a Broker’s Authorised Users, as well as to the Customer Portal for any End Customers linked to the Broker’s Account.
- The Broker agrees that the Company shall not be liable in any way for any valid termination or suspension of the Broker’s access to the Platform.
- The Broker agrees that the Company shall not be responsible or liable in any way for interruptions to the availability of the Platform or the loss of Broker Data in the event of suspension and/or termination of their Account pursuant to clause 3.8.
Broker data and customer data
The Company agrees to treat all Broker Data and Customer Data as Confidential Information under these Terms of Service.
The Broker agrees that the Company is not responsible for maintaining the confidentiality of any Broker Data or Customer Data by Users generally.
The Company does not guarantee the accuracy with respect to any information contained in any Broker Data. The Broker is entirely responsible for all Broker Data that is uploaded, posted, transmitted, or otherwise made available through the Platform, as well as for any actions taken by other Users or End Customers as a result of Broker Data.
By uploading Broker Data to the Platform, the Broker authorises the Company to process the Broker Data. The Broker is responsible for ensuring that:
- The Broker and any of the Users associated with their Account do not create, transmit, display or make otherwise available any Broker Data that violates the terms of these Terms of Service, the rights of the Company or Users or is harmful (for example viruses, worms, malware and other destructive codes), offensive, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, invasive of another's privacy, hateful or otherwise unlawful; and
- The Broker and all of the Users associated with the Account have the necessary rights to use the Broker Data, including to insert it into the Platform and process it by means of the Account.
Where the Company determines any Broker Data is illegal, offensive, indecent or objectionable in its sole discretion, then the Company may:
- Notify the Broker of such unlawful Broker Data;
- Demand that the Broker bring the Broker Data into compliance with these Terms of Service and applicable law; and/or
- Temporarily or permanently remove the Broker Data from the Platform, restrict access to it or delete it.
The Company shall not access, use, modify or otherwise deal with Broker Data except where required by compulsion of law or upon the Broker’s authority (such as to provide access to and support for the Platform).
The Broker grants the Company an immediate, worldwide, royalty-free license to use and incorporate the Broker Data within the Platform, for the purposes of providing the Platform to the Broker, for the duration of these Terms of Service.
The Company may use Broker Data in an aggregated or anonymised format for research, educational and other similar purposes. The Company may not otherwise use or display Broker Data without Broker’s written consent. The Company respects the Broker’s rights to exclusive ownership of their Broker Data. Unless specifically permitted by the Broker, the Broker’s use of the Platform does not grant the Company the license to use, reproduce, adapt, modify, publish or distribute the Broker Data created by the Broker or stored in the Account for the Company’s commercial, marketing or any similar purpose. The Broker expressly grants the Company the right to use and analyse aggregate system activity data associated with use of the Platform by the Broker and its Users for the purposes of optimizing, improving or enhancing the way the Platform operates, and to create new features and functionality in connection with the Platform in the sole discretion of the Company.
The Broker is solely responsible for its own Broker Data and the consequences of posting or publishing them on or through the Platform. In connection with Broker Data, the Broker affirms, represents, and warrants that:
- The Broker either owns its Broker Data or has the necessary licenses, rights, consents, and permissions to use and authorize the Company to display or otherwise use the Broker Data under all patent, trademark, copyright, trade secrets, or other proprietary rights in and to the Broker Data in a manner consistent with the intended features of the Platform and these Terms of Service, and to grant the rights and license to the Company pursuant to clause 4.6;
- The Broker Data or the Company’s use of such Broker Data pursuant to these Terms of Service, and the Company’s exercise of the license rights do not and will not:
- infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right;
- violate any applicable law or regulation anywhere in the world; or
- require obtaining a license from or paying any fees and/or royalties by the Company to any third party with respect to the operation of the Platform or for the exercise of any rights granted in these Terms, unless the Broker and the Company otherwise agree in writing.
The Company may permanently delete Broker Data from its systems on termination of these Terms of Service.
The Company has no liability to the Broker for any User that:
- Imports or exports any data to or from the Platform;
- Accesses any data via the Platform; and/or
- Shares any data contained within the Platform.
- By accepting the terms and conditions of these Terms of Service, the Broker is granted a limited, non-exclusive and revocable licence to access and use the Platform for the duration of these Terms of Service, in accordance with these Terms of Service.
- The Company may issue the licence to the Broker on the further terms or limitations as it sees fit (including the number of permitted Authorised Users).
- The Company may revoke or suspend the Broker’s licence(s) in its absolute discretion for any reason that it sees fit, including for breach of these Terms of Service by the Broker.
Modification of Terms
- The terms of these Terms of Service may be updated by the Company from time-to-time.
- Where the Company modifies the terms, it will provide the User with written notice, and the User will be required to accept the modified terms in order to continue using the Platform.
- The Broker agrees and accepts that the Platform is:
- Hosted on servers managed by the Company and shall only be installed, accessed and maintained by the Company, accessed using the internet or other connection to the Company servers and is not available ‘locally’ from the User’s systems; and
- Managed and supported exclusively by the Company from the servers managed by the Company and that no ‘back-end’ access to the Platform is available to the User unless expressly agreed in writing.
- As a hosted and managed service, the Company reserves the right to upgrade, maintain, tune, backup, amend, add or remove features, redesign, improve or otherwise alter the Platform.
- The Company provides online support for the Broker within the Platform.
- The Broker should notify the Company of any difficulties or problems they may experience with the Platform as soon as practicable.
- The Company shall endeavour to respond to all support requests within 3 Business Days.
Use & Availability
- The Broker agrees that it shall only use the Platform for legal purposes and shall not use it to engage in any conduct that is unlawful, immoral, threatening, abusive or in a way that is deemed unreasonable by the Company in its discretion.
- The Broker is solely responsible for the security of its username and password for access to the Platform. The Broker shall notify the Company as soon as it becomes aware of any unauthorised access of its Account.
- The Broker agrees that the Company shall provide access to the Platform to the best of its abilities, however:
- Access to the Platform may be prevented by issues outside of its control; and
- It accepts no responsibility for ongoing access to the Platform.
- The Broker agrees that they shall not directly or indirectly:
- Say or do anything or engage in any conduct which is intended, or would reasonably be expected, to disparage, damage the reputation, bring into disrepute or otherwise lead to unwanted or unfavourable publicity to the Company and/or the Company’s partners and affiliates;
- Make any disparaging statements or comments about the Company and/or the Company’s partners and affiliates to End Customers, whether in writing or orally; and/or
- Make any defamatory public statements or comments about the Company and/or the Company’s partners and affiliates.
- The obligation under this clause 5.6 shall survive the termination of these Terms of Service.
- For the avoidance of doubt, the failure to comply with this obligation will be considered a breach of this Agreement for the purposes of clause 5.14.
- Security. The Company takes the security of the Platform and the privacy of its Users very seriously. The Broker agrees that it shall not do anything to prejudice the security or privacy of the Company’s systems or the information on them.
- Transmission. The Company shall do all things reasonable to ensure that the transmission of data occurs according to accepted industry standards. It is up to the Broker to ensure that any transmission standards meet the Broker’s operating and legal requirements.
- Trade marks. The Company has moral and registered rights in its trade marks and the Broker shall not copy, alter, use or otherwise deal in the marks without the prior written consent of the Company.
- Proprietary Information. The Company may use software and other proprietary systems and Intellectual Property for which the Company has appropriate authority to use, and the Broker agrees that such is protected by copyright, trademarks, patents, proprietary rights and other laws, both domestically and internationally. The Broker warrants that it shall not infringe on any third-party rights through the use of the Platform.
- The Platform.The Broker agrees and accepts that the Platform is the Intellectual Property of the Company and the Broker further warrants that by using the Platform the Broker will not:
- Copy the Platform or the services that it provides for the Broker’s own commercial purposes; and
- Directly or indirectly copy, recreate, decompile, reverse engineer or otherwise obtain, modify or use any source or object code, architecture, algorithms contained in the Platform or any documentation associated with it.
- Content. All content (excluding Broker Data) submitted to the Company, whether via the Platform or directly by other means, becomes and remains the Intellectual Property of the Company, including (without limitation) any source code, analytics, insights, ideas, enhancements, feature requests, suggestions or other information provided by the User or any other party with respect to the Platform.
Third Party DependenciesThe Broker acknowledges and agrees that the Platform has third party dependencies which may affect its availability, including (without limitation) internet service providers and hosting services and third-party service providers, and that the Company has no means of controlling the availability of such dependencies and shall not be liable for any interruptions to such.
- The Company agrees to keep all Broker Data in the strictest confidence, and to the extent Broker Data is accessed and/or received by the Company it shall be deemed as Confidential Information for the purposes of these Terms of Service.
- Each party acknowledges and agrees that:
- The Confidential Information is secret, confidential and valuable to the disclosing party (Discloser);
- It owes an obligation of confidence to the Discloser concerning the Confidential Information;
- It must not disclose the Confidential Information to a third party except as permitted in these Terms of Service;
- All Intellectual Property rights remain vested in the Discloser, but disclosure of Confidential Information does not in any way transfer or assign any rights or interests in the Intellectual Property to the receiving party; and
- Any breach or threatened breach by the receiving party of an obligation under these Terms of Service may cause the Discloser immediate and irreparable harm for which damages alone may not be an adequate remedy. Consequently, the Discloser has the right, in addition to other remedies available at law or in equity, to seek injunctive relief against the receiving party (and its agents, assigns, employees, officers and directors, personally) or to compel specific performance of this clause.
- A party must notify the Discloser in writing, giving full details known to it immediately, when it becomes aware of:
- Any actual, suspected, likely or threatened breach by it of any obligations it has in relation to the Confidential Information.
- Any actual, suspected, likely or threatened breach by any person of any obligation in relation to the Confidential Information; or
- Any actual, suspected, likely or threatened theft, loss, damage, or unauthorized access, use or disclosure of or to any Confidential Information.
- The receiving party must promptly take all steps that the Discloser may reasonably require and must co-operate with any investigation, litigation or other action of the Discloser or of a related body corporate if there is:
- Any actual, suspected, likely or threatened breach of a term of these Terms of Service; or
- Any theft, loss, damage or unauthorized access, use or disclosure of or to any Confidential Information that is or was in its possession or control.
Liability & Indemnity
- The Broker agrees that it uses the Platform at its own risk.
- The Broker acknowledges that the Company is not responsible for the conduct or activities of any User and that the Company is not liable for such under any circumstances.
- The Broker agrees to indemnify the Company for any loss, damage, cost or expense that the Company may suffer or incur as a result of or in connection with the Broker’s use of or conduct in connection with the Platform, including any breach by the Broker of these Terms of Service.
- In no circumstances will the Company be liable for any direct, incidental, consequential or indirect damages, damage to property, injury, illness, loss of property, loss or corruption of data, loss of profits, goodwill, bargain or opportunity, loss of anticipated savings or any other similar or analogous loss resulting from the Broker’s access to, or use of, or inability to use the Platform, whether based on warranty, contract, tort, negligence, in equity or any other legal theory, and whether or not the Company knew or should have known of the possibility of such damage, injury, illness or business interruption of any type, whether in tort, contract or otherwise.
- Certain rights and remedies may be available under the Competition and Consumer Act 2010 (Cth) or similar legislation of other States or Territories and may not be permitted to be excluded, restricted or modified. Apart from those that cannot be excluded, the Company and the Company’s related entities exclude all conditions and warranties that may be implied by law. To the extent permitted by law, the Company’s liability for breach of any implied warranty or condition that cannot be excluded is restricted, at the Company’s option to:
- The re-supply of services or payment of the cost of re-supply of services; or
- The replacement or repair of goods or payment of the cost of replacement or repair.
No WarrantyThe Company takes no responsibility for any harm or loss suffered by the Broker with respect to their services relationship with End Customers, and in particular the delay or failure for a home loan to complete, in which case the User shall have no recourse against the Company.
- Either party may terminate this Agreement by giving the other party 30 days’ written notice, which will be deemed to be given when the Broker’s Account is cancelled.
- Either party may terminate these Terms of Service by giving the other party no less than 5 Business Days’ notice where:
- The other party has been notified in writing of a breach and has not remedied that breach within 3 Business Days;
- The other party commits a breach which is incapable of remedy; and/or
- The other party repetitiously, wilfully or recklessly commits a breach.
- Access to the Platform shall cease at the end of the Broker’s billing cycle active at the expiry of the relevant notice period.
- Termination of these Terms of Service is without prejudice to and does not affect the accrued rights or remedies of any of the parties arising in any way out of these Terms of Service up to the date of expiry or termination.
- If any dispute arises between the parties in connection with these Terms of Service (Dispute), then either party may notify the other of the Dispute with a notice (Dispute Notice) which:
- Includes or is accompanied by full and detailed particulars of the Dispute; and
- Is delivered within 10 Business Days of the circumstances giving rise to the Dispute first occurring.
- Within 10 Business Days after a Dispute Notice is given, a representative of each party with the authority to resolve the dispute, must meet (virtually or otherwise) and seek to resolve the Dispute.
- Subject to clause (d), a party must not bring court proceedings in respect of any Dispute unless it first complies with the requirements of the dispute resolution mechanism outlined in this clause.
- Nothing in this clause prevents either party from instituting court proceedings to seek urgent injunctive, interlocutory or declaratory relief in respect of a Dispute.
- Despite the existence of a Dispute, the parties must continue to perform their respective obligations under this document and any related agreements.
Electronic Communication, Amendment & Assignment
- The words in this clause that are defined in the Electronic Transactions Act 1999 (Cth) have the same meaning.
- The User can direct notices, enquiries, complaints and so forth to the Company as set out in these Terms of Service. The Company will notify the User of a change of details from time-to-time.
- The Company will send the User notices and other correspondence to the details that the User submits to the Company, or that the User notifies the Company of from time-to-time. It is the User’s responsibility to update its contact details as they change.
- A consent, notice or communication under these Terms of Service is effective if it is sent as an electronic communication unless required to be physically delivered under law.
- Notices must be sent to the parties’ most recent known contact details.
- The User may not assign or otherwise create an interest in these Terms of Service.
- The Company may assign or otherwise create an interest in its rights under these Terms of Service by giving written notice to the User.
- Special Conditions. The parties may agree to any Special Conditions to these Terms of Service in writing.
- Prevalence. To the extent these Terms of Service is in conflict with, or inconsistent with any Special Conditions made under these Terms of Service, the terms of those Special Conditions shall prevail.
- Disclaimer. Each party acknowledges that it has not relied on any representation, warranty or statement made by any other party, other than as set out in these Terms of Service.
- Relationship. The relationship of the parties to these Terms of Service does not form a joint venture, agency or partnership.
- Waiver. No clause of these Terms of Service will be deemed waived and no breach excused unless such waiver or consent is provided in writing.
- Further Assurances. Each party must do anything necessary (including executing agreements and documents) to give full effect to these Terms of Service and the transaction facilitated by it.
- Governing Law. These Terms of Service is governed by the laws of New South Wales, Australia. Each of the parties hereby submits to the non-exclusive jurisdiction of courts with jurisdiction there.
- Severability. Any clause of these Terms of Service, which is invalid or unenforceable, is ineffective to the extent of the invalidity or unenforceability without affecting the remaining clauses of these Terms of Service.
- Interpretation. The following rules apply unless the context requires otherwise:
- Headings are only for convenience and do not affect interpretation.
- The singular includes the plural and the opposite also applies.
- If a word or phrase is defined, any other grammatical form of that word or phrase has a corresponding meaning.
- A reference to a clause refers to clauses in these Terms of Service.
- A reference to legislation is to that legislation as amended, re enacted or replaced, and includes any subordinate legislation issued under it.
- Mentioning anything after includes, including, or similar expressions, does not limit anything else that might be included.
- A reference to a party to these Terms of Service or another agreement or document includes that party’s successors and permitted substitutes and assigns (and, where applicable, the party’s legal personal representatives).
- A reference to a person, corporation, trust, partnership, unincorporated body or other entity includes any of them.
- A reference to information is to information of any kind in any form or medium, whether formal or informal, written or unwritten, for example, computer software or programs, concepts, data, drawings, ideas, knowledge, procedures, source codes or object codes, technology or trade secrets.
End Terms of Service