Terms and conditions

By accessing or using the website or the platform you agree to be bound by our Terms and Conditions

Introduction

RateSetter Australia RE Limited ABN 57 166 646 635 (RateSetter, we, us, our) provide the RateSetter information technology platform (Platform) via ratesetter.com.au and its subdomains (Website), which facilitates marketplace lending transactions between users that are members (Lenders) of the RateSetter Lending Platform ARSN 169 500 449 (Scheme) and users that borrow via the Platform (Borrowers) (the Platform, Website and Scheme together comprising the RateSetter Services).

The credit provider for all loans provided to Borrowers is Australian Executor Trustees Limited ABN 84 007 869 794 (Credit Provider), who acts as custodian for the Scheme.

RateSetter Australia Pty Limited ABN 29 161 376 638 provides services to RateSetter and you, and may act on your behalf for the purpose of seeking an estimate or quote for the cost of credit from the Credit Provider.

These Terms and Conditions constitute an agreement between us and the person who accesses or has accessed our Website (you, your).

If you proceed to become a Lender, your investment will be governed by the constitution of the Scheme (Constitution) and if there is any inconsistency between the Constitution and these Terms and Conditions, then the Constitution will prevail to the extent of the inconsistency.

If you proceed to become a Borrower, your loan will be governed by an agreement between yourself and the Credit Provider (Loan Contract). If there is any inconsistency between the Loan Contract and these Terms and Conditions, then the Loan Contract will prevail to the extent of the inconsistency.

An instruction made by a Lender to lend funds (Lending Order) and an offer made by a Borrower to borrow funds (Borrowing Order) are together referred to as Orders.

By accessing or using the Website or the Platform, you agree to be bound by our Terms and Conditions. If you do not agree to our Terms and Conditions or any revisions of this Website, you should not use this Website and/or any information derived as a result of the use of this Website, including the Platform.

We may make changes to these Terms and Conditions from time to time and will take steps to bring any such changes to your attention (such as by placing a notice of the change on a prominent position on the Website, together with the changed Terms and Conditions). It is your responsibility to check these Terms and Conditions from time to time to ensure that you agree with them, and your continued use of the Platform after any change to these Terms and Conditions will be deemed to be your acceptance of the change.

If we make a change to these Terms and Conditions between the time you make an Order through the Platform and the time that Order is accepted or processed, the Order and any loan made further to it will be subject to these Terms and Conditions as they were before we made that change.

1. Use of the Website

  1. You agree that you will not (either yourself or through a third party):
    1. use any robot, spider, screen scraper, data aggregation tool or other automatic device or process (Automated Process) to process, monitor, copy or extract any web pages on the Website, or any of the information, content or data contained within or accessible through the Website or Platform, without our prior written permission;
    2. use any Automated Process to aggregate or combine information, content or data contained within or accessible through the Website or Platform with information, content or data accessible via or sourced from any third party;
    3. use any device, software (including but not limited to introducing a virus, a worm or other malicious code), process or routine to interfere or attempt to interfere with the proper working of the Website or Platform or any transaction or process being conducted on or through it;
    4. take any action that imposes an unreasonable or disproportionately large load on the infrastructure of or bandwidth connecting to the Website or Platform;
    5. reverse engineer, reverse assemble, decompile, or otherwise attempt to discover source code or other arithmetical formulae or processes in respect of the software underlying the infrastructure and processes associated with the Website or Platform;
    6. copy, reproduce, alter, modify, create derivative works of, or publicly display, any part of any content from the Website or Platform without our prior written permission;
    7. post or otherwise distribute information on or through the Website or Platform that would be in breach of another person’s intellectual property rights;
    8. post or otherwise distribute on or through the Website or Platform any:
      1. defamatory, obscene, harassing, threatening or other unlawful material or information; or
      2. photographs containing obscene images,
      the nature of the content of which may be determined by us in our sole discretion;
    9. post or otherwise distribute on or through the Website or Platform any information that is confidential to a third party without their permission; or
    10. use the Website or Platform for any other unlawful purpose or activity.

2. RateSetter Profiles

Registration

  1. In order to use the Platform you must have a user account established via the Website (RateSetter Profile).
  2. As a Lender, you may register to establish your RateSetter Profile by specifying a contact e-mail address and password (Log-in Details) on the registration form on the Website.
  3. As a Borrower, a RateSetter Profile will be established for you if you complete the RateEstimate or application form on the Website.
  4. You may not have more than one RateSetter Profile, except where you wish to act in different capacities (for example, in your personal capacity and in your capacity as a trustee in which case, you may have a RateSetter Profile for each capacity).
  5. You agree to provide accurate, current and complete information during the registration process and update such information by your accessing of your RateSetter Profile to keep your RateSetter Profile accurate, current and complete.
  6. We may suspend or terminate one or more of your RateSetter Profiles and your access to the Website, Platform and RateSetter Services if you:
    1. are ineligible to become a Lender or a Borrower;
    2. establish or seek to establish more than one RateSetter Profile (except where permitted by clause 2.4); or
    3. if any information provided during the registration process or thereafter is inaccurate, incomplete or not current.
  7. You authorise us or the Credit Provider, at any time, to use any means that we or the Credit Provider consider necessary to verify your identity with any third party providers of information using the information about you that you have provided us from time to time including information set out in your RateSetter Profile. Please refer to the Privacy Statement and Electronic Communication: Your Consent.
  8. The establishment of your RateSetter Profile will be conducted using secure server encryption.

Confirmation and passwords

  1. Upon completion of the RateSetter Profile registration process, we may:
    1. confirm by e-mail, to the address you have supplied, that your RateSetter Profile has been established; and
    2. inform you of the randomly generated unique ten digit account user code (RateSetter Profile Number) that we will use in all correspondence with you.
  2. You are responsible for safeguarding your Log-in Details. You agree that you will not disclose your Log-in Details to any third party and that you will take sole responsibility for any actions or inactions undertaken in respect of your RateSetter Profile, whether or not you have authorised such actions or inactions. You will immediately notify us of any unauthorised use of your RateSetter Profile.
  3. We recommend that you change your password on a regular basis. Passwords should contain a mixture of upper and lower case letters and numbers and/or symbols. Passwords are case sensitive and we recommend the use of passwords that combine a combination of non obvious letters and numbers in different cases. This will help to prevent the risk of unauthorised use of your RateSetter Profile.

3. Use of Platform by Lenders

  1. In order to be a Lender and lend via the Platform, you must first apply to be a member of the Scheme.
  2. To apply, you must download and read the RateSetter Lending Platform Product Disclosure Statement (PDS) and complete the application form on the Website that is attached to or accompanying the PDS.

Lending Orders

  1. A Lending Order will:
    1. only be valid and open for processing by the Platform if it is made in accordance with these Terms and Conditions;
    2. remain valid and open for processing until the earliest of the:
      1. termination of the Lending Order by us in accordance with clause 3.9;
      2. withdrawal, or deemed withdrawal, of the Lending Order from the Platform by you in accordance with clauses 3.10 and 3.11 or clause 3.13; and
      3. removal or suspension of, or refusal to post, the Lending Order in accordance with clause 5.
  2. The interest rate at which a Lender makes an Lending Order is the Lender Rate and is expressed net of any applicable fees. The gross annualised interest rate at which a Lender’s funds may be matched to a Borrowing Order is the Lending Market Order Rate.
  3. A Lender Order will be matched at the Lender Rate or a rate higher than the Lending Market Order Rate.
  4. You are responsible for the information that you provide to us regarding each Lending Order that you make. We will not:
    1. enquire into the reasonableness of any Lending Order that you may make; and
    2. be liable for incorrect entries made by you on the Website or the Platform, including data input errors with respect to the interest rate, amount or any other parameter of a Lending Order.
  5. You may not nominate any Borrower(s) to which your Lending Order is matched.
  6. We will not identify you to any Borrower(s) unless required to do so by law.
  7. If we allow you to make a Lending Order and subsequently suspect that you are or were, at the time of making the Lending Order, in breach of these Terms and Conditions, we may, at our absolute discretion, terminate your Lending Order and any additional Lending Orders made by you on the Platform.
  8. Unmatched Lending Orders may be withdrawn at any time by you (unless and until they have been matched to any Borrowing Order) by cancelling the relevant Lending Order for a loan in 'Your Lending’ page on the Website.
  9. The withdrawal of an outstanding Lending Order becomes effective when your instruction to withdraw is successfully received and processed by us. In the event that we do not receive and process the withdrawal in sufficient time, you acknowledge that your Lending Order may be processed.
  10. If you attempt to withdraw a Lending Order that is outstanding, you may not be able to do so if that Lending Order has been fully or partially matched with a Borrowing Order. In this case, your original Lending Order will be validly accepted and settled.
  11. If you request a withdrawal of any funds that are currently the subject of an unmatched Lending Order from the Platform, we will be deem that instruction to withdraw funds to also be a withdrawal of the relevant Lending Order in accordance with clause 3.10.

4. Use of Platform by Borrowers

  1. Before you are able to borrow on the Platform we will undertake a credit underwriting process which may include a review of your credit information held with credit bureaus, analysis of your provided income and expense information and verification of your information with third parties which may include employers or other credit providers.
  2. In obtaining a loan using the Platform, you may be required to pay a risk assurance charge (RAC) for your loan. The RAC may be required to be paid at the establishment of the loan or over the life of the loan or a combination of both.
  3. The RAC, if payable, will be specified in the Schedule of your Loan Contract (Loan Contract Schedule) and will be retained and paid to The Trust Company (Australia) Limited ABN 21 000 000 993 as trustee for the RateSetter Provision Fund (Provision Fund Trustee) before the Amount of Credit (as defined in the Loan Contract) is disbursed to you under your loan.
  4. The RAC is a non-refundable fee, and will not be refunded, rebated or returned to you in any form, even where you repay a loan early.
  5. The Loan Contact includes details of other fees and charges which may be payable
  6. To apply for a loan:
    1. you must answer any additional questions that we ask you and agree to undergo the identity verification and credit underwriting process;
    2. you must read and agree to the Privacy Statement and Electronic Communication: Your Consent;
    3. we will use the information that we have collected and a credit scoring system when assessing your loan application; and
    4. after we have determined your loan application, we will inform you whether you are eligible to borrow through the Platform.

Borrowing Orders

  1. A Borrowing Order will:
    1. only be valid and open for acceptance if it is made in accordance with these Terms and Conditions;
    2. be open for acceptance on the Platform by or on behalf of the Credit Provider; and
    3. remain valid and open for acceptance by or on behalf of the Credit Provider until the earliest of:
      1. termination of the Borrowing Order by us in accordance with clause 4.12;
      2. withdrawal of the Borrowing Order from the Platform by you in accordance with clauses 4.13 and 4.14; and
      3. removal or suspension of, or refusal to post, the Borrowing Order in accordance with clause 5.
  2. In making of a Borrowing Order, the Borrower represents and agrees that, once the Borrowing Order is received by us:
    1. the Borrower makes the acknowledgements and declarations set out in the Loan Contract;
    2. the Borrower offers to be bound, and if a Borrowing Order is matched with one or more Lending Orders will be bound, by the Loan Contract; and
    3. the Borrower offers to have its direct debit payments (established separately via the Website) processed in relation to the payment of amounts under each Loan Contract.
  3. Once a Borrowing Order has been matched with one or more Lending Orders and we have signed the Loan Contract, the Borrower’s offer to enter into a loan with the Credit Provider on the terms of the standard form Loan Contract will be deemed to have been accepted by the Credit Provider.
  4. You may not nominate any Lender(s) to be matched to any of your Borrowing Orders.
  5. We will not identify you to any Lender unless required to do so by law.
  6. If we allow you to make an Borrowing Order and subsequently suspect that you are or were, at the time of making the Borrowing Order, in breach of these Terms and Conditions, we may, in our absolute discretion, terminate your Borrowing Order and any additional Borrowing Orders made by you on the Platform. We reserve the right in these circumstances to require you to immediately repay any outstanding loans that you have entered into on the Platform.
  7. Unmatched Borrowing Orders may be withdrawn at any time by you (unless and until they have been matched to any Lending Order) by cancelling the relevant Borrowing Order for a loan in 'Your Borrowing’ page on the Website.
  8. The withdrawal of an outstanding Borrowing Order becomes effective when your instruction to withdraw is successfully received and processed by us. In the event that we do not receive and process the withdrawal in sufficient time, you acknowledge that your Borrowing Order may be accepted.
  9. If you attempt to withdraw a Borrowing Order that is outstanding, you may not be able to do so if that Borrowing Order has been fully or partially matched with Lending Orders. In this case, your original Borrowing Order will be validly accepted.

Borrower rates

  1. The annual percentage rate which applies to your loan (the Borrower Rate) will be set out in the Loan Contract.
  2. An annual percentage rate displayed on the Website for a variable rate loan is calculated using current Lending Market Order Rates and is stated as an average rate that assumes the loan is repaid over the entire indicated term. If Lending Market Order Rates in the market or markets from which a loan is funded change, or you repay part or all of your loan early, the average annual percentage rate over the term of your loan may differ from this displayed annual percentage rate.
  3. If you obtain a variable rate loan, the Borrower Rate set out in your Loan Contract may change in order to, inter alia, ensure that the correct amount of interest is charged across the term of the loan. This may result in both increases and decreases in the Borrower Rate over the term of your loan.

5. Processing of Orders

General

  1. Once an Order is matched, you will not be able to change the terms of your Order even if you had intended to withdraw your Order but failed to do so or the message to us to withdraw your Order was not received and processed by us before the Order was matched on the Platform.
  2. You must inform us as soon as you become aware of any errors with respect to your RateSetter Profile or any calculations with respect to any Orders you have placed. We reserve the right to remove from the Platform any Orders which are the subject of any error.
  3. We reserve the right to refuse to post your Order on the Platform without giving prior notice to you.
  4. We may determine, at our absolute discretion, when the Platform is available for the posting of Orders and may suspend the Platform at any time in our absolute discretion.
  5. Orders may only be created using our Platform in accordance with these Terms and Conditions. Any purported acceptance or confirmation made by means other than by completing the 'Confirm Order' or ‘Pre-contractual disclosure and loan submission’ screen for the relevant Order on the Website will be ineffective.

6. Repayment of loans

  1. If you are a Borrower, you must repay the loan by making the repayments set out in the Loan Contract Schedule and may make early repayments under the Loan Contract. Refer to your Loan Contract for further details.
  2. If you are a Borrower and you miss a repayment or anticipate that you might be in a position that will lead to your missing a repayment you should contact us as soon as possible at contact@ratesetter.com.au or on 1300 768 710. We will inform you of the procedures that will apply and your options.

7. Lender reinvestment option

If you are a Lender, you may choose to activate the function which will automatically re-lend all Borrower payments that you receive (your Reinvestment Options). Your Reinvestment Options will operate by creating an Order to lend specified payment amounts when they are received on the basis of the parameters you have selected, including the RateSetter lending market in which your money should be lent and a Lending Market Order Rate. You will be informed when the Order to lend is matched.

8. Use of the RateSetter Services

  1. If you need assistance with your access to and use of the RateSetter Services, you may e-mail us at contact@ratesetter.com.au or telephone us on 1300 768 710.
  2. We may record telephone calls and reserve the right to monitor all information relating to your use of the RateSetter Services.
  3. You must not:
    1. impersonate any person or entity, or falsely state or otherwise misrepresent yourself, your age, your financial employment or personal circumstances or your affiliation with any person or entity;
    2. use or attempt to use another person's RateSetter Profile, service or system without authorisation from us;
    3. create a false identity on the Website or Platform; or
    4. solicit personal information from anyone or solicit passwords or personally identifying information for commercial or unlawful purposes.

9. Acknowledgements, representations and warranties

  1. You acknowledge and agree that you:
    1. are solely responsible for all results of your actions and inactions from your use of the Website;
    2. will not allow any other person to use your RateSetter Profile; and
    3. will not disguise or interfere in any way with the IP address of the computer you are using to access the Website or otherwise take steps to prevent us from correctly identifying the actual IP address of the computer you are using whilst accessing the Website.
  2. You represent and warrant that the information you provide as part of any registration or application process using the Website or Platform is true and correct and that you are the person whose details you have provided in connection with your RateSetter Profile.
  3. If you represent a company or other legal entity (Entity) or are acting on behalf of persons acting jointly (Joint Account Holders), you represent and warrant that:
    1. you are authorised to provide information relating to those Joint Account Holder or that Entity to third parties for the purpose of identity verification (including to electronic identity verification service providers) in accordance with RateSetter’s Privacy Policy; and
    2. you are authorised to bind, and acknowledge that your access to or use of this Website, the Platform and the RateSetter Services binds, those Joint Account Holders or that Entity to these Terms and Conditions.
  4. If you are a company, you warrant that we are able to rely on the Australian Securities and Investments Commission company search of you as being up to date and correct at all times.
  5. If you are a trustee, you warrant that you have full power and authority to enter into these arrangements and to exercise the rights and perform the obligations under these arrangements.

10. Communications and notices

Communications and notices to be given by you under these Terms and Conditions (other than those exchanges of information occurring in the normal operation of the Website) should be sent to us in the manner prescribed in the 'Contact Us' page on the Website.

11. Liability

Indemnity

  1. You agree to indemnify and hold each other RateSetter Profile holder, us and our associated companies, affiliates, officers, directors, agents and employees harmless from any liabilities, claims, losses or demands arising out of your fraud.
  2. Without prejudice to clause 11.1, you also agree to indemnify and hold each other RateSetter Profile holder, us and our associated companies, affiliates, officers, directors, agents and employees harmless from any liabilities, claims, losses or demands arising out of:
    1. any falsehood or inaccuracy contained in any information you provide us; or
    2. another person using or trading on your RateSetter Profile (whether or not authorised by you), except where it is our fault that they have done so.

Limitation of liability

  1. To the extent permitted by law:
    1. we do not accept liability for any loss or damage, however caused (including through negligence), which you may directly or indirectly suffer in connection with your use of the RateSetter Services. In particular, we are not liable if interference with or damage to your computer or other technological systems occurs in connection with your use of the Website;
    2. any condition, warranty or guarantee which would otherwise be implied by these Terms and Conditions is hereby excluded; and
    3. our liability to you for breach of a condition, warranty or guarantee implied by such legislation shall be limited, at our sole discretion, to the payment of the cost of having the services supplied again.
  2. To the extent permitted by law, we will have no liability for:
    1. not confirming that your RateSetter Profile is open or providing you with an identifier when you open your account;
    2. if you are a Borrower, not exercising reasonable skill and care in determining your eligibility to borrow on the Platform;
    3. not displaying on the Website, for withdrawing or for not matching with any prospective Lender or Borrower, any Order to lend or borrow which you submit to us; or
    4. any loss or damage that you may suffer because of any matter beyond our reasonable control including any: act of God; power cut; trade or labour dispute; act, failure or omission of any government or authority; obstruction or failure of telecommunication services; or any other delay or failure caused by a third party. In such an event, we reserve the right to cancel or suspend the RateSetter Services without incurring any liability.
  3. Nothing in these Terms and Conditions excludes, restricts or modifies any guarantee, condition, warranty, right or remedy which applies to these Terms and Conditions under the Competition and Consumer Act 2010 (Cth) or any similar State legislation and which cannot be excluded, restricted or modified.

12. Intellectual property

  1. The trade marks, service marks and logos (Trade Marks) used in this Website are our or our licensor's registered or unregistered Trade Marks. You may not copy, reproduce, adapt or transmit any Trade Mark in any form without our prior written consent and/or the consent of our licensors.
  2. Our Website address www.ratesetter.com.au is our uniform resource locator (URL). You must not make any use of this URL (or any other URL owned by us) on another website or digital platform without our prior written consent.
  3. The Website, its associated layout and design, are our property. No part of the Website may be copied, reproduced, adapted or transmitted in any form by any process without our prior written consent.
  4. You agree to assign to us any intellectual property rights (including copyright) relating to any Orders made by you on the Platform. We own all rights in any price data and related content on the Platform. Your registration and use of our Platform confers no rights whatsoever to the content and related intellectual property rights contained in our Platform. You agree not to monitor, use or copy our web pages or any content on the Platform, including without limitation any price data. Any unauthorised use or reproduction may be prosecuted.

13. Assignment

You may not assign any part of these Terms and Conditions without our written consent but we may assign these Terms and Conditions to any associated companies or affiliates without notice to you.

14. Platform access

  1. These Terms and Conditions apply to you, through whatever means you access the Website or Platform.
  2. You agree to accept any other of our terms and conditions (which we will publish on our Website from time to time) giving you access to the Platform, including those relating to any RateSetter mobile telephone application or for a licence to a RateSetter Application Programming Interface (API). Any such terms and conditions are incorporated by reference into these Terms and Conditions.

15. Links to Third Party Websites

The Website may provide links to access various other websites on the internet (Third Party Websites). We do not endorse or warrant or guarantee the accuracy, copyright compliance, legality, decency, or any other aspect of the content of any Third Party Websites. The inclusion of Third Party Websites does not imply any association with the Third Party Websites’ operators.

16. Severability

In the event that any provision of these Terms and Conditions are deemed by any competent authority to be unenforceable or invalid, the relevant provision shall be modified to allow it to be enforced in line with the intention of the original text to the fullest extent permitted by applicable law. The validity and enforceability of the remaining provisions of these Terms and Conditions shall not be affected.

17. Dispute resolution

  1. If you want to make a complaint about RateSetter you can e-mail complaints@ratesetter.com.au or telephone us on 1300 768 710, with brief details of your complaint and your RateSetter Profile number. Our customer service staff will acknowledge your complaint by e-mail as soon as is practicable. They will then investigate and send you an initial response, having had access to an officer with the authority to settle the complaint (including, where appropriate, an offer of redress). Where appropriate, the member of staff investigating the complaint will not be any staff member who was directly involved in the subject matter of the complaint.
  2. We will let you know within 7 days of receiving a complaint if we need further information from you to consider your complaint. If we request further information, you will have 14 days to provide that information unless we agree to an extension of time.
  3. We aim to resolve all complaints within 45 days after receiving notice of a complaint.
  4. If you are not satisfied with the outcome of the complaint, you can contact the Financial Ombudsman Service (FOS) by calling 1300 780 808. FOS operations are governed by published terms of reference, which are available at www.fos.org.au.

18. General

  1. The Terms and Conditions are governed by the law in force in New South Wales, Australia. Each party submits to the non-exclusive jurisdiction of the courts exercising jurisdiction in New South Wales, and any court that may hear appeals from any of those courts, for any proceedings in connection with these Terms and Conditions.
  2. In the event that any provision of these Terms and Conditions should be determined to be unenforceable or invalid to any extent by a court of competent jurisdiction, such provision shall be deemed to be modified as needed to ensure its enforceability to the maximum extent permitted under the law and shall not affect the validity and enforceability of any other remaining provisions.

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