Terms of Service

Last Update: 4 Aug 2022

Provider means Mortgage Processing Services Pty Ltd (ACN 608 519 044) Trading As BrokerEngine of 22 Brookes St, Bowen Hills Queensland 4006, contactable at brokerengine.com.au/contact/.

Customer means you or the entity that you are contracting for as authorised representative, contactable on the email you communicate to Provider during the setup process.

1. Agreement

This document describes an Agreement for Customer to engage Provider to deliver the Service.

2. Fees

Customer will pay Provider the fees, specified on the web page at brokerengine.com.au/pricing, for the Services.  From time to time, the Provider may change the fees for the Services as notified to the Customer in writing with 30 days’ notice.

3. Payment method

Customer authorises Provider to deduct the fees for the Services every month from the Customer’s credit card nominated during the set up process or any such other method directed by Provider to Customer.

4. Payment refund in first 90 days

Provider will refund any fees paid by Customer to Provider (minus any payment processing fees) if Customer discontinues use of the Services within 90 days of commencing use of the Services.

To the extent that there is any inconsistency between the guarantee at brokerengine.com.au/pricing and this Agreement, the terms of this Agreement will take precedence to the extent of any inconsistency.

5. Failure to pay

If Customer fails to pay any amount due under this Agreement for more than 7 days, Provider may immediately, at its discretion:

• charge Customer interest at an interest rate equal to the ATO GIC Rate found at https://www.ato.gov.au/Rates/General-interest-charge-%28GIC%29-rates/; and
• suspend the provision of any part of the Services to Customer.

6. Setup

Customer is responsible for the setup and installation of the Service.

Provider may provide an “on-boarding service” for Customers under the terms of this Agreement. The Customer agrees to pay the on-boarding service fees quoted by Provider in advance before Provider is obligated to provide the on-boarding service.

7. Support and maintenance

Provider will provide support and maintenance to Customer in connection with the Services as described by the Support Policy.

8. Planned interruptions

Provider may interrupt the provision of the Services with 5 days’ written notice to Customer.

Provider will have no liability to Customer or any other person or be required to repay any fees for the Services due to planned interruptions to the Services.

9. Unplanned interruptions

Customer acknowledges that:

• interruptions as a result of third party suppliers to Provider are beyond the control of Provider; and
• the Services may occasionally be interrupted due to technical difficulties.

Provider will use reasonable efforts to remedy interruptions to the Services as soon as reasonably practicable.

Provider will have no liability to Customer or any other person or be required to repay any fees for the Services due to unplanned interruptions to the Services.

10. Service accounts

Customer agrees to:

• provide accurate and complete information to Provider to establish the Account;
• keep details used to access the Account secure and private; and
• notify Provider in the event that the Account’s security is compromised in any way.

Customer agrees that it will be responsible for the Account’s activity, even if the Account is used in an unauthorised way by any other person.

11. Privacy

Provider will store and use the Personal Information of Customer in accordance with Provider’s Privacy Policy, accessible at brokerengine.com.au/privacy-policy/.

In using the Services, Customer is responsible for ensuring its own compliance with Privacy Laws. Provider does not warrant that any use of the Services by Customer complies with any Privacy Laws.

Customer must seek consent from any person before providing their Personal Information to Provider. If Provider receives the Personal Information of any person from Customer, Customer will be taken to have obtained the proper consents and indemnify the Provider for any Costs relating the provision of the Personal Information.

Provider will make reasonable efforts to remove all Customer Data from the Services within 30 days of termination of this Agreement.

The Customer consents to the Provider may use the Customer Data (or another party provides on your behalf) to train our machine learning model in connection with the provision of the Services. No Personal Information will be retained as part of this machine learning model.

12. Confidentiality

Except as otherwise set forth in this Agreement, each party agrees that all code, inventions, know-how and business, technical and financial information disclosed to such party (Receiving Party) by the disclosing party (Disclosing Party) constitute the confidential property of the Disclosing Party (Confidential Information), provided that it is identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be confidential or proprietary due to the nature of the information disclosed and the circumstances surrounding the disclosure.

The Service and any performance information relating to the Service will be deemed Confidential Information of Provider without any marking or further designation.

Except as expressly authorised herein, the Receiving Party will (1) hold in confidence and not disclose any Confidential Information to third parties and (2) not use Confidential Information for any purpose other than fulfilling its obligations and exercising its rights under this Agreement.

The Receiving Party may disclose Confidential Information to its employees, agents, contractors and other representatives having a legitimate need to know, provided that they are bound to confidentiality obligations no less protective of the Disclosing Party than this section 12 and that the Receiving Party remains responsible for compliance by them with the terms of this section 12.

The Receiving Party’s confidentiality obligations will not apply to information which the Receiving Party can document: (i) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (ii) is or has become public knowledge through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or (iv) is independently developed by employees of the Receiving Party who had no access to such information.

The Receiving Party may also disclose Confidential Information if so required pursuant to a regulation, law or court order or rules of an applicable securities exchange (but only to the minimum extent required to comply with such regulation or order and with advance notice to the Disclosing Party, where practicable).

The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party the Disclosing Party will be entitled to appropriate equitable relief in addition to whatever other remedies it might have at law.

13. Acceptable use

Customer agrees to use the Service in accordance with the law at all times and only in ways that the Service was designed to be used.

Customer agrees not to use the Service to communicate or store any information:

• that could reasonably be considered racist or hate speech;
• that infringes the Intellectual Property Rights of a third party
• to harass any third party;
• that is pornographic in nature;
• that could reasonably be categorised as “malware”;
• such that the use interferes with Provider’s ability to provide the same service to other parties; and
• that is unlawful.

The parties agree that a breach of this section 13 gives Provider the right to immediately suspend Customer’s access to the Service until Provider is reasonably satisfied that the use breaching this clause will be discontinued.

14. Loan Processor transactions

Provider facilitates commercial transactions between Loan Processors and Customer through the Service, but disclaims all legal liability in relation to the transactions between Loan Processors and Customer.

Customer agrees to make a good faith effort to resolve conflicts between itself and Loan Processors without the intervention of Provider and indemnify Provider for any Costs incurred by Provider in relation to Loan Processors.

15. Data and Intellectual Property Rights

The Customer owns all the Intellectual Property Rights in the Customer Data.

Customer grants Provider an irrevocable, transferable, non-exclusive, royalty free licence in the Customer Data in order to provide the Services and meet any other obligation under this Agreement. This license will cease at the termination of this Agreement, except insofar as it relates to Provider’s retention of any Customer Data required by law or as otherwise provided in this Agreement.

The Customer warrants that any terms agreed to with third parties for the supply of data, which may become Customer Data, includes a guarantee by that third party that the data will not infringe the Intellectual Property Rights of another party.

The Provider owns all the Intellectual Property Rights in the Service. Provider grants the Customer a revocable, non-exclusive, non-transferable License to use the Services for the purposes set out in this Agreement. 

Provider reserves the right to alter any element of the Service at its discretion.

Customer agrees not to reverse engineer any part of the Service.

No licence or right is granted over any intellectual property in the Service unless explicitly described in the Agreement.

Customer does not have any right to resell or sub-licence the Service.

If Customer provides Feedback to Provider, Customer transfers all Intellectual Property Rights in the Feedback (and any resulting enhancements to the Service) to Provider.

16. Data storage and disclosure

Customer agrees that the Provider may disclose Customer Data to:

• to sub-contractors that work with Provider to provide the Services;
• its Related Entities and its and their, employees, contractors and agents;
• Loan Processors that the Customer contracts with using the Services;
• its professional advisers;
• its insurers;
• its debt collectors (if a debt under this Agreement is due); and
• any governmental authority, court or as otherwise required by law.

Provider will not use or disclose Customer Data other than for the purposes of this Agreement or for the disclosure purposes listed in this Agreement. This obligation survives termination of this Agreement.

Provider will store all Customer Data on an Australia-based cloud hosting infrastructure.

17. Backup responsibility and Disaster Recovery

Provider performs backups of Customer Data as follows:

Snapshot Period	Stored For
Daily snapshots	7 days

Provider also has in place and will use all reasonable efforts to comply with the Disaster Recovery & Business Continuity procedures set out in Schedule 1.

18. Claim limits

Excluding a breach of section 15 (Data and Intellectual Property Rights), the amount a party can claim from the other party in relation to the Services or this Agreement is limited to the fees for the Services paid by Customer in the immediately preceding 12 months from the notification of claim.

Neither party will be liable for any Consequential Loss in relation to the Service or this Agreement.

19. Indemnity

Customer will defend, indemnify and hold harmless Provider and a Related Entity of Provider and the Providers and Related Entities’ employees, contractors and agents (Indemnified Party) from and against any loss, cost, liability or damage (including legal fees) incurred by an Indemnified Party arising from or related to the following:

Risks on data, including:

• Customer’s breach of any Privacy Laws;
• Customer’s breach of any law in connection with spam;
• Customer’s storing of any third party data on the Services;
• a third party pursuing a right conferred by Privacy Laws; and
• any legal action taken by a third party alleging intellectual property infringement by Customer in connection with the Services.

Risks relating to this Agreement, including:

• Customer’s breach of this Agreement;
• any negligent act of Customer connected with the Services;
• third party reliance on the Services under a contract with Customer; and
• Customer’s use of the Services in connection with unlawful activity.

Provider will defend, indemnify and hold harmless Customer from and against any loss, cost, liability or damage (including legal fees) incurred by Customer arising from a claim by a third party that the Service breaches the Intellectual Property Rights of the third party, provided the Customer uses the Service in accordance with the terms of this Agreement.

To the fullest extent permitted by the law, the parties exclude the application of Proportionate Liability Laws to the indemnities in this section 19.

20. Warranties and Disclaimer

Each party represents and warrants that it has the legal power and authority to enter into this Agreement.  If Customer is an entity, Customer represents and warrants that this Agreement is entered into by an employee or agent of Customer with all necessary authority to bind such entity to the terms and conditions of this Agreement.

Provider further represents and warrants that it will take reasonable commercial efforts to ensure that the Service, in the form and when provided to Customer, will be free of any viruses, malware, or other harmful code.  For any breach of the foregoing warranty, Customer’s sole and exclusive remedy, and Provider’s sole obligation, is to provide a replacement copy of the Service promptly upon notice.

EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 20, THE SERVICE, SUPPORT AND MAINTENANCE AND ANY ADDITIONAL SERVICES ARE PROVIDED “AS IS,” AND PROVIDER EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES AND REPRESENTATIONS OF ANY KIND, INCLUDING ANY WARRANTY OF NON-INFRINGEMENT, TITLE, FITNESS FOR A PARTICULAR PURPOSE, FUNCTIONALITY, OR MERCHANTABILITY, WHETHER EXPRESS, IMPLIED, OR STATUTORY. PROVIDER WILL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES OR OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE THE REASONABLE CONTROL OF PROVIDER. TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER PROVIDER NOR ANY OF ITS THIRD PARTY SUPPLIERS MAKES ANY REPRESENTATION, WARRANTY OR GUARANTEE AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICE OR ANY CONTENT THEREIN OR GENERATED THEREWITH, OR THAT: (A) THE USE OF THE SERVICE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE; (B) THE SERVICE WILL OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM, OR DATA; (C) THE SERVICE (OR ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY CUSTOMER THROUGH THE SERVICE) WILL MEET CUSTOMER’S REQUIREMENTS OR EXPECTATIONS); (D) ERRORS OR DEFECTS WILL BE CORRECTED; OR (E) EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 20, THE SERVICE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.  YOU MAY HAVE OTHER STATUTORY RIGHTS, BUT THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, WILL BE LIMITED TO THE SHORTEST PERIOD PERMITTED BY LAW.

Nothing in this Agreement excludes, restricts or modifies any consumer guarantee, right or remedy conferred on Customer by the Consumer Laws or any other applicable law that cannot be excluded, restricted or modified (Non-Excludable Obligation). To the maximum extent permitted by law, Provider’s liability for a breach of a Non-Excludable Obligation is limited, at Provider’s option, to the cost of supplying the Services again or payment of the reasonable cost of having the Services supplied again.

21. Lender and Other Service Provider Information

The information on the Service may change at any time without notice.

Provider’s participating lenders and other service providers (such as lenders mortgage insurance (LMI) providers) supply the information for the Service including, but not limited to, interest rates, fees associated with products (including credit cards), product features and other lender offers available (such as cashbacks or frequent flyer points), and LMI fees, costs and other information (Lender and Other Service Provider Information) and therefore there may be inaccuracies in the Lender and Other Service Provider Information over which the Provider has no control. Provider does not warrant or guarantee the timeliness, accuracy or completeness of the Lender and Other Service Provider Information. Customers agree to independently confirm and verify the applicable Lender and Other Service Provider Information directly with the relevant lender.

To the maximum extent permitted by law, Provider has no liability in relation to, or arising out of, the Lender and Other Service Provider Information and any recommendations made by Customers relating to such Lender and Other Service Provider Information.

22. Agreement Term

This Agreement will apply for the Term with rolling term renewals. At the end of each Term, this Agreement will automatically renew for another Term unless a party to the Agreement gives the other party 14 days’ notice prior to the end of the current Term. In case of such notice, this Agreement will continue to the end of the Term when notice was given, but will not roll over for a new Term.

23. Agreement changes

The Provider may amend or vary this Agreement by updating this Agreement on its website at https://brokerengine.com.au/terms-of-service/ with the amendments taking effect 14 days after such amendments are notified on the Provider’s website at https://brokerengine.com.au/terms-of-service/.

The Customer agrees that continued use of the Services by the Customer after the date at which the amendments take effect will constitute agreement by the Customer to those changes.

24. Termination of Agreement

A party may terminate this Agreement immediately if:

• the party notifies the other party of a breach of this Agreement and 7 days after the breach notification, the Agreement breach is not remedied by the other party; or
• the other party becomes insolvent.

Upon any expiration or termination of this Agreement, Customer’s license to the Service terminates and Customer must cease using and delete (or at Provider’s request, return) all
Service and Confidential Information or other materials of Provider in Customer’s possession, including on any third-party systems operated on Customer’s behalf.  Customer will certify such deletion upon request.

If this Agreement is terminated by Customer in accordance with this section 24 for cause, Provider will refund you any prepaid Service fees covering the remainder of the then-current Term after the effective date of termination. If this Agreement is terminated by Provider in accordance with this section 24 for cause, Customer will pay any unpaid fees covering the remainder of the then-current Term after the effective date of termination. In no event will termination relieve Customer of its obligation to pay any fees payable to Provider for the period prior to the effective date of termination. Except where an exclusive remedy may be specified in this Agreement, the exercise by either party of any remedy, including termination, will be without prejudice to any other remedies it may have under this Agreement, by law, or otherwise.

The following sections of this Agreement will survive any termination or expiration of this Agreement: 2 (Fees), 11 (Privacy), 12 (Confidentiality), 15 (Data and Intellectual Property Rights), 16 (Data Storage and Disclosure), 18 (Claim Limits), 19 (Indemnity), 20 (Warranties and Disclaimer), 21 (Lender Information), 23 (Termination of Agreement), 25 (General Provisions), 26 (Definitions), and 27 (Interpretation).

25. General Provisions

The parties agree that defined terms are capitalised.

The governing law of the Agreement will be Queensland, and the parties agree that this state will be the exclusive jurisdiction for any proceedings under the Agreement.

The parties may send Communications to other parties using the email addresses listed in the party details section of this Agreement.

Customer will be liable for all duties and taxes connected with this Agreement, including any tax incurred under GST Law. The parties enter this Agreement intending to be completely independent of each other, and not as a party to a joint venture, partnership or agency agreement.

This Agreement will apply retrospectively to any Services provided by Provider to Customer prior to the commencement of this Agreement, unless the parties agree otherwise in writing.

The parties agree to do everything required to give full effect to this Agreement.

This Agreement and any other document incorporated by reference constitute the entire legal agreement. The parties agree that they have not relied on any representation or statements outside the terms of this Agreement.

This Agreement may be executed or entered into electronically.

The documents constituting this Agreement may be executed in multiple counterparts.  The counterparts will be read as one legal document.

No right or obligation under this Agreement will be waived unless the waiver is explicitly waived in writing.

Any unenforceable or invalid term of this Agreement will only be severed to the extent of the unenforceability or invalidity without affecting any other term in this Agreement.

This Agreement is binding on each party’s successors and permitted assigns.

The parties will cover their own expenses in preparing this Agreement.

26. Definitions

Account, Accounts

means a digital account used by Customer for the purpose of the Services.

Agreement, Agreements

means the agreement arising between the parties in accordance with this document and the other documents referred to in this document.

Communication, Communications

means any communication in connection with this Agreement.

Confidential Information

has the meaning given to that term in section 12.

Consequential Loss, Consequential Losses

means any kind of consequential or indirect loss, including loss of profits, loss of revenue, expenses incurred, pure economic loss, loss of opportunity and any kind of punitive or exemplary loss or damages.

Consumer Laws

means applicable laws relating to consumer protection, including provisions set out in Schedule 2 of Competition and Consumer Act 2010 (Cth).

Cost, Costs

means any costs, expenses, losses, damages, claims, demands, proceedings, and other liability.

Customer Data

means any data or information provided by the Customer to the Provider for the purposes of the Provider providing the Service to the Customer.

Feedback

means any comments or suggestions in relation to the Services by Customer resulting from use of the Services by Customer.

GST Law, GST Laws

means the A New Tax System (Goods and Services Tax) Act 1999 (Cth).

Intellectual Property Right, Intellectual Property Rights

means, with the exception of moral rights and other inalienable rights, all right, title and interest, in each of the following in Australia and throughout the world, whether registered, unregistered or pending registration, and whether conferred by statute, common law, equity or otherwise:

• copyright;
• trade marks;
• trade names, brand names or indications of source, appellation or origin;
• inventions including patents, utility patents, patent applications, utility patent applications, and utility models;
• circuit layout designs;
• registered or unregistered designs;
• rights in databases;
• topography rights;
• design rights;
• plant variety and plant breeder rights;
• domain name registrations;
• confidential information, trade secrets, and know how;
• any other intellectual property as defined in Article 2 of the Convention establishing the World Intellectual Property Organisation of July 1967;
• any application for the registration of any of the above, and any rights to make such an application;
• any right to take action to enforce any of the above rights; and
• any licence from a third party to use any of the above.

Lender and Other Service Provider Information

has the meaning given to that term in section 21.

Licence, Licences

means the licence to use the Services provided under this Agreement.

Loan Processor, Loan Processors

means the loan processors that the Customer contracts with using the Services.

Personal Information

has the meaning given to that term in the  Privacy Laws.

Privacy Policy

means Provider’s privacy policy published at brokerengine.com.au/privacy-policy/.

Privacy Laws

means the Privacy Act 1988 (Cth) and related regulations.

Proportionate Liability Law, Proportionate Liability Laws

means legislative provisions that apportion liability for Costs between parties in cases where more than one party caused the Cost, but which parties are permitted by law to contract out of, including the provisions in the following legislation:

• Civil Liability Act 2002 (NSW);
• Law Reform (Contributory Negligence and Apportionment of Liability) Act 2001 (SA);
• Civil Liability Act 2002 (Tas);
• Wrongs Act 1958 (Vic);
• Civil Liability Act 2002 (WA);
• Civil Law (Wrongs) Act 2002 (ACT); and
• Proportionate Liability Act 2005 (NT).

Related Entity, Related Entities

has the meaning given to that term in the Corporations Act 2001 (Cth).

Service, Services

means BrokerEngine, software for helping mortgage brokers with processes related to mortgages, provided by Provider.

Support Policy, Support Policies

means the document entitled “Support Policy” at brokerengine.com.au/support/.

Term, Terms

means a time period of 1 month.

27. Interpretation Principles

Unless the terms and conditions of this Agreement explicitly state otherwise, this Agreement will be interpreted as follows:

Parties

• a reference to a party includes that party’s permitted assigns, administrators, successors, executors, legal representatives and any novated party;
• any reference to a trustee includes any substituted or additional trustee;

Grammatical Forms

• unless used for the usual grammatical purpose, inverted commas around a term indicate industry jargon that will be interpreted according to how that term would be understood by an individual with expertise in the relevant industry;
• “including”, “includes” or any derivation of those words does not limit the matter in question to the things specifically mentioned in the applicable context;
• where a term is defined, other grammatical forms of that term will be taken to have the same meaning;
• headings are for convenience and will not affect interpretation;
• words in the singular will be taken to include the plural and also the opposite;
• “$” means the Australian dollar;

Document References

• a reference to a document will be to that document as updated, varied or amended;
• a document referenced by this Agreement will not take precedence over the referencing document;
• when any kind of legislative instrument is referenced, the reference will be taken to be that instrument as updated or substituted for by the legislative body in any way;
• where a “URL” is mentioned, the non-operation of the “URL” will not render the rights and obligations associated with it invalid;
• any referenced digital resource may be replaced with another digital resource that is a “copy” of the original resource;

Rights and Obligations

• a reference to a party’s conduct includes omissions as well as acts; and
• if a party is described as having discretion in a matter, the discretion in that matter will be interpreted as sole and absolute;.

Schedule 1

Application Hosting: the application is hosted on Sydney-based Amazon Web Service EC2 server infrastructure with a 99.95% uptime guarantee.

Monitoring: 24x7x365 server monitoring is in place.

Application Technical Support: 24x7x365 support is in place with both our hosting infrastructure provider and our application developer.

Technical Redundancy: we maintain a direct working relationship with a minimum of 3 developers who are familiar with the application.

Code Repository: a local copy of the application code and database is held, in addition to the live version on Amazon Web Service EC2.