Provider means Mortgage Processing Services Pty Ltd (ACN 608 519 044) Trading As BrokerEngine of Queensland, 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. Payment calculation
Customer will pay Provider the fees, specified on the web page at brokerengine.com.au/pricing, for the Services. From time to time pricing as per the aforementioned page may change, in which case the pricing proposed to and accepted by the customer will stand.
3. Payment method
Customer authorises Provider to effect payment for the Services via credit card or any other method directed by Provider every month.
4. Payment refund
The sole exception to the section of this document entitled “claim limits” is an undertaking to refund amounts paid by Customer to Provider (minus 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 the terms in this document, the terms in this document will take precedence to the extent of any inconsistency.
5. Failure to pay
If Customer fails to pay any amount due under the 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. Supply of services
Provider will provide the Services described in this document to Customer in accordance with the Agreement.
7. Setup
Customer is responsible for the setup and installation of the Services.
Provider may provide an “on-boarding service” for Customers under the terms of this document. The Customer agrees to pay the amount quoted by Provider in advance before Provider is obligated to provide the service.
8. Support and maintenance
Provider will provide support and maintenance as described by the Support Policy.
9. Planned interruptions
Provider may interrupt the provision of the Services with 5 days’ written notice.
10. 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.
11. 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.
12. 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/.
Customer is responsible for its own compliance with privacy law. Provider does not promise that any use of the Services by Customer complies with any privacy law.
Customer must seek consent from Individuals before providing their Personal Information to Provider. If Provider receives the Personal Information of Individuals, Customer will be taken to have obtained the proper consents.
If Individuals consent to such transfer, Provider will not be accountable for the disclosure of their Personal Information to Provider.
Provider will make reasonable efforts to remove all Customer Data fromthe Services within 30 days of Termination of this Agreement, or as soon as practical following the written request of an Authorised User.•
Provider will comply with the Privacy Act 1988 (Cth) (Privacy Act) in respect of any personal information received in the Customer Data.Personal information takes the meaning assigned to it in the Privacy Act from time to time.
Provider will notify Customer as soon as practical in the event that any Customer Data held by Provider is lost or subjected to unauthorised access, disclosure or other misuse and take reasonable steps to remediate any such breach.
The Provider will require that any contractors or other associated third parties who handle Customer Data agree to the same or substantially similar obligations of this clause 12.
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 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. Data rights
Ownership of the Customer Data remains with Customer.
Customer provides an Expansive Licence over the Customer Data to Provider in order to provide the Services and meet any other obligation under the Agreement. The Expansive 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; and
- where Customer Data originates from a third party, the Customer provides no guarantee that the Provider’s use of that data will not infringe on the Intellectual Property Rights of another third party. The Customer will however ensure 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 Intellectual Property Rights of another party.
Provider grants the Customer a revocable, non-exclusive, non-transferable License to use the Services for the purposes set out in this Agreement.
15. Processor transactions
Provider facilitates commercial transactions between Loan Processors and Customers, but has no relationship at law with 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.
16. Data storage and disclosure
Provider reserves the right to disclose Customer Data to:
- to sub-contractors that work with Provider to provide the Services;
- its related entities;
- Loan Processors that the Customer contracts with using the Services;
- its advisers like lawyers, accountants and other similar parties;
- its insurers;
- its debt collectors (if a debt under the Agreement is due); and
- any governmental authority upon a lawful request.
Provider will not use or disclose Customer Data other than for the purposes of the Agreement or for the disclosure purposes listed in the Agreement. This obligation survives Termination of the Agreement.
Provider will store all Customer Data on 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. Intellectual property protection
Provider reserves the right to alter any element of the Product IP at its discretion.
Customer agrees not to reverse engineer any part of the Product IP.
No licence or right is granted over any intellectual property in the Product IP unless explicitly described in the Agreement.
Customer does not have any right to resell or sub-licence the Product IP unless the Agreement explicitly provides otherwise.
If Customer provides Feedback to Provider, Customer Transfers Intellectual Property Ownership in the Feedback (and any resulting enhancements to the Service) to Provider.
19. Claim limits
The amount Customer can claim from Provider in relation to the Services is Limited To The Legal Minimum (including for any Example Costs).
20. Covering costs
Customer will Cover All Costs of Provider arising from the risks described below.
Risks on data, including:
- Customer’s breach of any privacy law;
- 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 law; and
- any legal action taken by a third party alleging intellectual property infringement by Customer in connection with the Services.
Risks relating to the Agreement, including:
- Customer’s breach of the 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.
21. Agreement duration
The Agreement will apply for the Term with rolling term renewals. At the end of each Term, the Agreement will automatically renew for another Term unless a party to the Agreement gives the other party 14 days notice. In case of such notice the Agreement will continue to the end of the Term when notice was given, but will not roll over for a new Term.
22. Agreement changes
If the Agreement has an automatically renewing term, Provider may amend or vary the Agreement by notifying Customer in writing at least 14 days prior to those amendments taking effect.
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.
If Customer does not agree to any amendments, the Customer must advise the Provider in writing within seven (7) days of receiving notice.
Where the parties cannot reach agreement on the amendments and the Provider advises the Customer that the variation will still take effect, the Customer must cease using the Services and/or seek to terminate this agreement if they do not consent to the amendments. As above, the Customer agrees that continued use past the effective date will constitute consent to the amendments.
23. Cancellation for breach
Either party may cancel the Agreement immediately if:
- a party notifies the other party of an Agreement breach; and
- 7 days after the breach notification, the Agreement breach is not remedied.
- Either party may also immediately cancel the Agreement if the other party becomes insolvent.
24. Boilerplate
The parties agree that defined terms are capitalised.
The parties agree to this document using capitalised defined phrases. Clauses with defined phrases will be read in such a way that a defined phrase is replaced by the rights and obligations it represents.
Defined phrase text is for convenience only and is not legally effective, however, words surrounding the defined phrase will affect the rights and obligations represented by the defined phrase when they are referenced.
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 Agreement parties using the email addresses listed in the party details section of the Agreement.
Customer will be liable for all duties and taxes connected with the Agreement, including any tax incurred under GST Law.
The parties enter the Agreement intending to be completely independent of each other, and not as a party to a joint venture, partnership or agency agreement.
The Agreement will apply retrospectively to any Services provided by Provider to Customer prior to the commencement of the Agreement, unless the parties agree otherwise in writing.
The parties agree to:
- the Boilerplate Provisions; and
- the Interpretation Principles.
25. 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 by this document.
Assignee, Assignees
means the party receiving ownership of the Intellectual Property Rights in the Provision.
Assignor, Assignors
means the party transferring ownership of the Intellectual Property Rights in the Provision.
Boilerplate Provisions
The following sections apply to the Agreement.
Further assurances
The parties agree to do everything required to give full effect to the Agreement.
Entire agreement
The 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 the Agreement.
Electronic signature
The Agreement may be executed or entered into electronically.
Counterparts
The documents constituting the Agreement may be executed in multiple counterparts. The counterparts will be read as one legal document.
Waiver
No right or obligation under the Agreement will be waived unless the waiver is explicitly waived in writing.
Severance
Any unenforceable or invalid term of the Agreement will only be severed to the extent of the unenforceability or invalidity without affecting any other term in the Agreement.
Binding on successors
The Agreement is binding on each party’s successors and permitted assigns.
Agreement expenses
The parties will cover their own expenses in preparing the Agreement documents.
Communication, Communications
means any contractual communication in connection with the Agreement.
Compulsory Condition, Compulsory Conditions
means any condition, warranty or guarantee that the law does not permit to be limited or excluded (such as the consumer guarantees under the Competition and Consumer Act 2010 (Cth)).
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.
Cost, Costs
means any costs, expenses, losses, damages, claims, demands, proceedings, and other liability.
Cover All Costs
The Indemnities are subject to the application of any Compulsory Conditions. To the fullest extent permitted by the law, the parties exclude the application of Proportionate Liability Laws to the Indemnities.
To the fullest extent permitted by the law, the Indemnifying Party indemnifies the Indemnified Party and its directors, employees, agents and assigns, for all Costs suffered by them, however caused, in connection with each of the Indemnified Risks.
Scope of Indemnity
The Indemnified Party must use reasonable endeavours to mitigate any Cost that arises that is subject to an Indemnity.• The Indemnity will not apply to Costs that are the subject of an Indemnity Exception, to the extent of that Indemnity Exception.
Separate indemnities
Each Indemnified Risk described in the Provision will give rise to a separate indemnity in relation to that Indemnified Risk on the terms and conditions in this document.
Indemnity details
Any Indemnity created by the Provision:
- will survive the termination of the Agreement; and
- will be additional to any contractual damages that the Indemnified Party might otherwise be entitled to claim.
Unless otherwise stated in the Provision, the Indemnified Party may make a claim under any Indemnity before any liability is crystallised, loss sustained or cost incurred.
Customer Data
means any data or information conveyed to the Service by Customer.
Example Cost, Example Costs
means any liabilities arising from the risks described below.
Consulting risks, including:
- reliance on advice or opinions communicated in whatever form;
- faulty technical advice or data; and
- failure to provide correct information or opinions.
Risks to people or property, including:
- any death or injury; and
- any property damage.
Risks relating to the Agreement, including:
- any transaction with a Loan Processor;
- any act or omission connected with the Agreement;
- breaches of the Agreement;
- the termination of the Agreement; and
- any delay in the provision of the Services.
Digital risks, including:
- failure of any software, hardware or network components provided by a third party;
- software or hardware that’s inaccessible for any reason;
- faulty or lost data associated with the Services;
- digital security issues like software vulnerabilities and malware; and
- software in a testing phase like (or analogous to) beta and alpha software.
Expansive Licence, Expansive Licences
The Licensor grants the Licensee a licence to the Intellectual Property Rights in the Licence Subject for the Licence Purpose. Unless otherwise specified in the Provision the licence is:
- irrevocable;
- transferrable;
- sub-licensable;
- perpetual;
- non-exclusive; and
- royalty free.
Where there is a Licence Exception, the licence of Intellectual Property Rights above will not apply to the subject of the Licence Exception.
The licence granted above will be subject to any terms and conditions specified in the Provision.
Licensor warrants that the Licensee’s legitimate exercise of the licensed Intellectual Property Rights for the Licence Purpose will not infringe the rights of any third party.
Licensor warrants that it will give and obtain any Moral Rights waivers and consents necessary to ensure the Licensee can use the Intellectual Property Rights for the Licence Purpose without infringing Moral Rights.
Feedback
means any comments or suggestions on the Service 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).
Indemnified Party, Indemnified Parties
means the party who is indemnified under the Provision.
Indemnified Risk, Indemnified Risks
means the areas of risk or potential liability described in the Provision.
Indemnifying Party, Indemnifying Parties
means the party providing the Indemnity under the Provision.
Indemnity, Indemnities
means any indemnity created via the operation of the Provision and the terms and conditions of this document.
Indemnity Exception, Indemnity Exceptions
means any exception described in the Provision to any Indemnity, Indemnities or Indemnified Risk.
Individual, Individuals
means a natural person.
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.
Interpretation Principles
Unless the terms and conditions of the Agreement explicitly state otherwise, the 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 the 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;
- if a party is described as having discretion in a matter, the discretion in that matter will be interpreted as sole and absolute; and
- where a party is required to do “anything necessary”, this includes executing agreements and other legal instruments.
Licence, Licences
means the licence to use the Services under the Agreement.
Licence Exception, Licence Exceptions
means the exception to the licence of Intellectual Property Rights.
Licence Purpose, Licence Purposes
means the purpose for using the Intellectual Property Rights specified in the Provision or, if no purpose is specified, then any purpose.
Licence Subject, Licence Subjects
means the subject(s) of the license of Intellectual Property Rights.
Licensee, Licensees
means the party receiving the licence of the Intellectual Property Rights in the Provision.
Licensor, Licensors
means the party licensing the Intellectual Property Rights in the Provision.
Limitation Exception, Limitation Exceptions
means the exception to the limitation of liability in this document that the Provision may or may not describe.
Limitation Risk, Limitation Risks
means the risks that may cause liability described in the Provision.
Limitation Subject, Limitation Subjects
means the subject(s) of the limitation of liability in the Provision (if any).
Limited Party, Limited Parties
means the party that is limited by the Limiting Party under the Provision.
Limited To The Legal Minimum
Limited Party deals with the Limiting Party in respect of the Limitation Subject at its own risk. To the fullest extent permitted by law, Limiting Party excludes all liability (including Consequential Loss) to Limited Party for any liabilities connected directly or indirectly with the Limited Party and Limiting Party dealings in relation to the Limitation Subject, including liabilities based on:
- contract law;
- tort law; or
- legislation,
and including liabilities caused by the Limitation Risks.
Where there is a Limitation Exception, this limitation of liability does not apply to the subject of the Limitation Exception.
Implied Conditions
To the fullest extent permitted by the law, all terms and conditions implied by any other source of law in relation to dealings between the Limiting Party and the Limited Party in respect of the Limitation Subject are excluded from the Agreement.
Compulsory Conditions
To the fullest extent permitted by the law, Limiting Party’s liability to the Limited Party for breaching a Compulsory Condition in relation to the Limitation Subject is limited to:
- in a case where a breach is deemed to be a breach in respect of goods:
- the replacement of the relevant goods or the supply of equivalent goods;
- the repair of the relevant goods;
- the payment of the cost of replacing the relevant goods or of acquiring equivalent goods; or
- the payment of the cost of having the relevant goods repaired; and
- in a case where a breach is deemed to be a breach in respect of services:
- the resupply of the relevant services; or
- payment of a sum equal to the cost of resupplying the relevant services.
The Limiting Party will choose which of these options will apply.
Limiting Party, Limiting Parties
means the party relying on the limitation of liability in the Provision.
Loan Processor, Loan Processors
means the loan processors that the Customer contracts with using the Services.
Moral Right, Moral Rights
means the rights commonly referred to as “moral rights”, such as the right of attribution, which are recognised in the jurisdiction of the Agreement.
Organisation, Organisations
means an organisation using the Services.
Personal Information
means any information that is categorised as “personal information” under privacy law.
Privacy Policy
means Provider’s privacy policy published at brokerengine.com.au/privacy-policy/.
Product IP
means the Intellectual Property in the Service.
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).
Provision, Provisions
means the provision in the Agreement that references this legal text from the text forming the Agreement.
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.
Transfer Exception, Transfer Exceptions
means the exception to the transfer of Intellectual Property Rights.
Transfer Intellectual Property Ownership, Transfers Intellectual Property Ownership
Assignor assigns all current and future Intellectual Property Rights in the Transfer Subject to Assignee.
The assignment is global unless the Provision specifies a particular territory for the assignment, in which case the Intellectual Property Rights are assigned in that territory only.
Assignor warrants and represents to Assignee that it has the right to transfer the Intellectual Property Rights under this clause and that the Assignee’s legitimate exercise of the assigned Intellectual Property Rights will not infringe the rights of any third party.
Assignor agrees to do all things necessary to give effect to the assignment of Intellectual Property Rights and Moral Rights consents and waivers in this clause.
Assignor gives (and where it does not hold the relevant Moral Rights warrants that it will obtain) any Moral Rights waivers and consents necessary to ensure the Assignee can deal in the Intellectual Property Rights in the Transfer Subject in accordance with this clause without infringing Moral Rights.
Where there is an Transfer Exception, the transfer of Intellectual Property Rights and obligations in relation to Moral Rights in the subclauses above will not apply to the subject of the Transfer Exception.
Transfer Subject, Transfer Subjects
means the subject(s) of the transfer of Intellectual Property Rights in the Provision.
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.
