Website Terms of Access and Use

Last updated: March 2019

Symple Loans Pty Ltd (ACN 624 150 849) as trustee for The Alpha Fund (we, us, our) provides a platform (Platform) via www.sympleloans.com.au and its subdomains (Website) which facilitates peer to peer lending transactions between users that are members (Lenders) of the Symple Loans Platform (Scheme) and users that borrow via the Platform (Borrowers).

The Platform, the Website and the Scheme together comprise the Symple Loans Services. It is important to note that our site as well as our services are not available to customers who are not Australian residents.

These terms and conditions of access to and use of the Website (Terms and Conditions) constitute an agreement between us and the person who accesses or has accessed our Website (you, your). By making an application to create a customer account in accordance with the procedures established on this Website, you are deemed to have read, understood and accepted these Terms and Conditions.

We reserve the right to amend these Terms and Conditions from time to time. We will use our reasonable endeavours to draw your attention to such amendments (including by placing a notice of the amendment on a reasonably prominent position on the Website, together with a link to the amendments to the Terms and Conditions).

Notwithstanding the foregoing, it remains your responsibility to periodically review these Terms and Conditions to ensure that you agree with them.

You acknowledge and agree that your continued use of the Website (including the Platform) after any changes to these Terms and Conditions will be deemed by us to be your acceptance of the amendment.

If we amend these Terms and Conditions between the time you make an offer to borrow funds from a Lender and the time that the offer is accepted or processed, the offer and any loan made further to it will be subject to these Terms and Conditions as they were before we amended the Terms and Conditions.

Access to and use of the Website

You agree to the following:

  1. you will refrain from using (either directly or through a third party) any 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, without prior permission;

  2. you will refrain from using any automated process to combine information, content or data contained within or accessible through the Website with information, content or data accessible via or sourced from any third party;

  3. you will refrain from using any software or any process to interfere with or attempt to interfere with the proper working of the Website or the Platform or any transaction or process conducted on or through it;

  4. to the maximum extent permitted by law, you will refrain from reverse engineering or attempting to discover source code or other algorithm or process in respect of the software underpinning the infrastructure or processes associated with the Website and Platform;

Creation and maintenance of your customer account

You agree to the following:

  1. in order to use the Platform and to access and to use certain components of the Website, you must set up a user account via the Website (your account).

  2. when you register your account with us and create your profile you will need to provide us with certain information. This includes your name, email address and other information we may request you provide for the purposes of registering your account.

  3. when you register your account with us, we will provide you with, or allow you to select, a unique password to combine with your email address submitted to us as your username (login credentials).

  4. when you have registered your account with us, we will notify you of the randomly generated unique user code (Account Number) that we will use in all correspondence with you.

  5. it is your responsibility to maintain the confidentiality and privacy of the login credentials and, to the maximum extent permitted by law, you are responsible for all activities that are conducted through your account under your Account Number whether or not you have authorised such activities (we recommend that you change your password regularly and comply with our recommendations on the composition of the passwords that we may make from time to time).

  6. your account and your continued right to access and to use the Website and the Platform are personal to you and you must not authorise others to use or access your account.

  7. in creating and maintaining your account, you will provide us with accurate, complete and current information and you will update such information using the tools we make available through the Website.

  8. you must not establish more than one account with us, except where you wish to act in different capacities.

  9. we may suspend or terminate one or more of your accounts and your access to the Website and to the Platform if you are ineligible to be a Borrower, you establish or seek to establish more than one account (except where permitted under these Terms and Conditions) or if any of the information you provide to us during the process of creating your account or thereafter is inaccurate, incomplete or not current.

  10. subject to us complying with our legal obligations under relevant privacy laws, you authorise us, at any time, to use any means that we consider to be necessary to verify your identity with any third party providers of information using the information that you have provided to us from time to time (including information that you disclose to us during the creation of your account).


Use of the Website

You agree to the following:

  1. you will only access and use the Website and the Platform in accordance with these Terms and Conditions and all applicable laws.

  2. you may be held personally liable by us for any damage we suffer as a result of your access to or use of the Website and/or the Platform contrary to these Terms and Conditions or any applicable law.

  3. we reserve the right to terminate your access and use rights (including your account(s)) if you fail to comply with these Terms and Conditions and all applicable laws in relation to the access and use of the Website and the Platform.

  4. you must refrain from submitting any content to us via the Website or the Platform that is inaccurate, misleading, false or deceptive or otherwise contrary to law or regulation (including defamatory, discriminatory, abusive, inflammatory, threatening, offensive, obscene, libellous or racially vilifying content, or content that comprises spam, promotes a product or commercial service, or solicits a business or otherwise breaches confidentiality, privacy or third party rights).

Use of the Website and Platform by Borrowers

Where you wish to access and use the Website and the Platform, as a Borrower, the following provisions of these Terms and Conditions apply to you, and you agree to the following:

  1. before you are able to enter into a Loan Agreement with a Lender via the Platform, we will undertake a process which may include a review by us of your credit information that is held by credit reporting bodies, an analysis of your income and expense information (details of which you provide to us) and verification of your information with third parties (which may include your employers, details of which you provide to us, and other credit providers).

  2. in obtaining a loan via the Platform, you may be required to pay certain charges and fees to us for your loan. We may charge these fees and charges to you at the establishment of the loan, over the course of the loan or a combination of both. These fees and charges will be specified in your Loan Agreement.

  3. to apply for a Loan, you must:

    3.1 answer any additional questions that we ask you and agree to undergo and to complete the identity verification and credit underwriting process;
    3.2 read and agree to the privacy statement and electronic communication (your consent); and
    3.3 agree to us using the information that we have collected and a credit scoring system when assessing your Loan Application.

  4. after we have determined your Loan Application, we will notify you whether you are eligible to borrow through the Platform.

You may terminate your registration as a Borrower at any time by notifying us through the Website or by contacting us by phone or via email. If your registration is terminated or suspended, these Terms and Conditions and any Loan Agreement to which you are party will continue to apply in respect of any existing Loans to which you are a party when the termination or suspension takes effect.

Offers to borrow

Where you have successfully completed the Loan Application, you are entitled to make an offer to borrow funds (Borrowing Offer) from a Lender via the Platform, provided you agree to the following:

  1. a Borrowing Offer will only be valid and open for acceptance if it is made in accordance with these Terms and Conditions and will only remain valid and open for acceptance until the Borrowing Offer is terminated in accordance with these Terms and Conditions or you withdraw the offer in accordance with these Terms and Conditions.

  2. in making a Borrowing Offer, you represent and agree that, once we receive the Borrowing Offer, you make the acknowledgments and declarations set out in the Loan Agreement, you offer to be bound (and if your Borrowing Offer is matched with one or more lending offer) will be bound, by the Loan Agreement, and you offer to have your direct debit payments processed in relation to the payment of amounts under the Loan Agreement.

  3. you may not nominate any Lender(s) to be matched to any of your Borrowing Offers.

  4. we will not identify you to any Lender unless required by law to do so.

  5. if we permit you to make a Borrowing Offer and we subsequently have reason to believe or to suspect that you were at the time of making the Borrowing Offer, in breach of these Terms and Conditions, we reserve the right (at our discretion) to terminate your Borrowing Offer and any additional Borrowing Offers made by you on the Platform and to require you to immediately repay any outstanding loans you have entered into via the Platform.

  6. you have the right to withdraw any Borrowing Offers before they are matched in accordance with the process set out on the Website.

  7. your withdrawal of a Borrowing Offer takes effect when we successfully receive and process your instruction to withdraw.

  8. until such time, you acknowledge that your Borrowing Offer may be accepted.

  9. if your Borrowing Offer is partially or fully matched, you may be unable to withdraw such Borrowing Offer.

Settlement

Subject to these Terms and Conditions, your Loan will be settled when funds are disbursed into your account. At settlement, we will collect the funds that make up the Loan Amount from the Lender(s) and deposit the Loan Amount into the Advance Account and, as authorised by you, we will deduct an amount equivalent to our applicable fees and charges and transfer it to our fee account (in satisfaction of your obligation to pay those applicable fees and charges) and then transfer the balance of the Loan Amount to your Nominated Account or as directed by you.

Interest rates

The following provisions apply to interest rates charged to a borrower under a Loan Agreement:

  1. the annual percentage rate that applies to a Loan made via the Platform (Borrower Rate) will be as set out in the Loan Agreement.

  2. if you obtain a Loan which is a variable rate loan via the Platform, then the Borrower Rate may change in order to ensure that the correct interest amount is charged across the Loan’s term, which may result in both increases and decreases in your Borrower Rate over the term of your Loan.

Processing of offers

  1. You must inform us as soon as you become aware of any errors with respect to any calculations with respect to any Borrowing Offers you have placed. We reserve the right to remove from the Platform any Borrowing Offers which contain or subject to any error.

  2. We reserve the right to refuse to post your Borrowing Offer on the Platform without notice to you.

  3. At our discretion, we may determine when the Platform is available for the submission of Borrowing Offers. At our discretion, we may suspend the Platform at any time.

  4. Borrowing offers may only be created using the Platform in accordance with these Terms and Conditions. Any purported acceptance or confirmation made by means other than through the Platform will be ineffective.

Loan repayments

  1. As a Borrower, you must repay the Loan by making repayments set out in the Loan Contract. Refer to your Loan Contract for further details.

  2. If you miss or anticipate that you may be in a position where you might miss a repayment you should contact us as soon as possible. We will inform you of the procedures that will apply and your options.

Collection Service

  1. We reserve the right (either ourselves or through a third party) to undertake a collection and enforcement service (Collection Service) in respect of your Loans.

  2. The Collection Service includes but is not necessarily limited to: (a) monitoring all payment obligations under each Loan Agreement; (b) taking appropriate steps to contact you for payment arrears; and (c) taking appropriate recovery action where there is a payment default.

Disclaimer of warranties

  1. While we use our reasonable endeavours to ensure that the Platform and the Website meets your needs and objectives, you must rely on your own judgment as to the fitness and suitability of the Platform and the Website for your particular purpose.

  2. Except for applicable non-excludable consumer guarantees, rights or warranties under consumer laws (Consumer Guarantees), we do not give any warranties or guarantees in relation to the Platform or the Website.

  3. Nothing in these Terms and Conditions should be taken as excluding, restricting or modifying any Consumer Guarantee as described above that we are prohibited by law from excluding, restricting or modifying. To the maximum extent a Consumer Guarantee applies, and where the relevant service is not of a kind ordinarily acquired for personal, domestic or household use) our liability to you for a breach of that Consumer Guarantee is limited, as far as the law permits, to the re-supply of the service of the cost of re-supply.

  4. To the maximum extent permitted by law, we exclude all liability for all indirect and consequential damages, loss of income, loss of profit, loss of revenue, loss of opportunity, and interruption of business.

Limitation of liability

  1. You acknowledge and agree, in respect of us and our directors, officers, employees, agents and contractors (Relevant Persons) that:

    1.1 to the maximum extent permitted by law, none of the Relevant Persons will be liable in respect of:

    1.1.1 any failure to provide the Platform or the Website or to otherwise comply with these Terms and Conditions, if the failure or non-compliance is caused by events beyond our reasonable control;
    1.1.2 failing to exercise reasonable skill, care and diligence in determining your eligibility to borrow on the Platform;
    1.1.3 failing to display on the Website, failing to withdraw or failing to match any prospective Borrower with a Lender, or any Borrowing Offer which you submit to us;
    1.1.4 any loss or damage that you may suffer due to any matter beyond our reasonable control, including any act of God, trade or labour dispute, act, failure or omission of any government or authority, obstruction or failure of any telecommunication services, or any other delay or failure caused or contributed to by a third party (in which case we reserve the right to suspend or cancel the Platform and the Website without liability to you); or
    1.1.5 to achieve any funding in respect of a Borrowing Offer;

    1.2 the liability (if any) of any Relevant Person in relation to any Loan will be limited to the amount of the relevant fees and charges actually received by us in respect of that Loan.

  2. We agree to take all reasonable steps to assess the suitability of the Platform and this Website for your needs, but you acknowledge and agree that you do not rely on our skill or judgment as to the suitability (or otherwise) of the Platform and the Website for your specific needs, in terms of providing a service through which you can seek to have loans funded.

  3. While we agree to use our reasonable endeavours to ensure that the Platform and this Website are available on a 24x7x365 basis, there may be times where access to and use of the Platform and this Website will be disabled for a period of time, for periods of scheduled or unscheduled maintenance. We will use our reasonable endeavours to communicate to you in advance of any period of scheduled maintenance and we will use our reasonable endeavours to restore access to and use of the Platform and Website as soon as reasonably possible following the outage or unavailability of the Platform or Website.

Intellectual Property Rights

  1. The trade marks, service marks and logos (Trade Marks) used in this Website are the property of us or our licensors and 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.sympleloans.com.au is our uniform resource locator (URL). You must not make use of this URL, or any other URL owned, controlled or used by us, on another website or digital platform without our prior written consent.

  3. The Website, its associated layout and design, and the content on the Website, are our exclusive property. No part of the Website may be copied, reproduced, adapted, transmitted or published, and no work may be derived from the Website (or any part of the Website) without our prior written consent.

  4. You agree to assign to us your right title and interest in and to your Borrowing Offers (including the intellectual property rights in your Borrowing Offers). As between you and us, we own all right title and interest in and to the price data and related content on the Platform. Except as otherwise set out in these Terms and Conditions, your registration and use of the Platform confers no rights whatsoever to the content and related intellectual property rights in our Platform. You agree not to monitor, use, copy, scrape or otherwise exploit the intellectual property rights in any content on the Platform, including without limitation any price data.

  5. We reserve our rights to take such action as we deem appropriate and reasonable in the circumstances to protect the intellectual property rights in the Website and the Platform which may include (but not be limited to) seeking urgent interlocutory relief without notice to you to prevent an anticipated, suspected or actual breach of these Terms and Conditions.

  6. Notwithstanding the foregoing, we grant to you a non-exclusive, fully paid up, revocable licence of the intellectual property rights in the Website, the Platform and the Trade Marks to enable you to access and to use the Website and the Platform, including the functionality and services provided via the Website and the Platform. This licence is automatically revoked when you cancel your registration or when your right to access and to use the Website and the Platform are terminated.

Assignment

  1. You acknowledge and agree that, to the maximum extent permitted by law, you are not entitled to assign or novate your rights or obligations owed under these Terms and Conditions without our prior written consent, but we may assign our rights and obligations to a third party without notice to you.

Application of Terms and Conditions

  1. These Terms and Conditions apply to your access to and use of the Website and the Platform, regardless of the means you utilise in order to access and use the Website and Platform.

  2. You agree to accept and to be bound by any other of our terms and conditions (which we will publish on our Website from time to time) granting you access to and the right to use the Platform, including those relating to any related mobile telephone or smart device application or for a licence to an Application Programming Interface (API) we release in relation to the Platform. Unless otherwise notified by us to you, and to the maximum extent permitted by law, any such terms and conditions are incorporated by reference into these Terms and Conditions.

Privacy

  1. We collect, hold, use, disclose and otherwise process personal information collected from individuals in accordance with our privacy policy and our credit reporting policy.

  2. You can access copies of these documents via our Website by following the relevant links. Alternatively, you may contact us to request copies of these documents to be provided to you at your nominated email address.

Termination

  1. If a party fails to comply with any provision of these Terms of Use, or if a party (being an individual) dies or becomes of unsound mind or an Insolvency Event occurs in relation to a party, then, except as otherwise provided by law, that party is in default.

  2. In these Terms and Conditions, an Insolvency Event means any of the following events:

    2.1 in respect of a party that is a corporation:

    2.1.1 a receiver, receiver and manager, trustee, other controller as defined in section 9 of the Corporations Act 2001 (Cth) or similar official is appointed over any of the assets or undertakings of the party;
    2.1.2 the party suspends payment of its debts generally or the party is or becomes unable to pay its debts when they are due;
    2.1.3 the party enters into or resolves to enter into any arrangement, composition or compromise with, or assignment for the benefit of, its creditors or any class of them;
    2.1.4 the party ceases to carry on business or threatens to cease to carry on business;
    2.1.5 a resolution is passed or steps are taken to appoint, or to pass a resolution to appoint, an administrator; or
    2.1.6 an application or order is made for the winding up or dissolution of the party or a resolution is passed or any steps are taken to pass a resolution for the winding up or dissolution of the party, otherwise than for the purpose of an amalgamation or reconstruction that has the other party’s prior written consent;

    2.2 in respect of a party who is an individual, the party becomes bankrupt or enters into any arrangement or composition with his/her creditors or proposes to do so.

  3. If a party is in default under these Terms and Conditions and the default is as a result of a failure to comply with any provision of these Terms and Conditions, then the non-defaulting party may serve a written notice on the party in default (Default Notice) specifying the default and the expenses attributable to the default (including proper and reasonable legal costs) and stating that the agreement formed under these Terms and Conditions will be terminated without further notice unless the default is remedied and all the expenses are paid by a specified date (being not less than 14 days from the date of service of the Default Notice).

  4. If the Default Notice is not complied with by the specified date, the agreement is immediately at an end and no further notice is necessary.

  5. If a party is in default by virtue of an Insolvency Event or by virtue of the party’s death or incapacity, then the non-defaulting party may immediately terminate the agreement by written notice to that effect on the party in default.

  6. The rights of the non-defaulting party under these Terms and Conditions are in addition to any other rights or remedies that party may have at law or otherwise.

  7. You have the right to terminate the agreement by written notice to us at any time.

  8. Where you have any outstanding Borrowing Offers listed on the Website or on the Platform at the effective date of termination, such Borrowing Offers remain valid until they are removed from the Website and Platform by us. We are not liable to you for any loss or damage you may suffer or incur as a result of any Borrowing Offers being accepted by a Lender in the period following the effective date of termination. We will use reasonable endeavours to remove all your Borrowing Offers from the Platform and Website as soon as reasonably practicable following the effective date of termination.

  9. The termination of these Terms and Conditions do not affect your existing obligations under any Loan Agreement to which you are a party.

Governing law and jurisdiction

  1. These Terms and Conditions are governed by and construed in accordance with the laws of the State of Victoria and any dispute arising out of the operation of these Terms and Conditions will be heard and resolved in the exclusive jurisdiction of the courts of the State of Victoria.

Notices

  1. Subject to these Terms and Conditions, any notice (which includes, without limitation, a demand, request, consent, approval and any other communication made, required or authorised under these Terms and Conditions) given under these Terms and Conditions must be in writing and directed to the recipient’s email address which is, in relation to notices you send to us, as set out in these Terms and Conditions and, in relation to notices we send to you, as set out in your application form (as amended from time to time).

  2. A notice given in accordance with the foregoing is taken to be received by the recipient at the time of receipt as specified in section 13A of the Electronic Transactions (Victoria) Act 2000 (Vic).

  3. Any notice received after 5.00pm in the place of receipt or on a day that is not a Business Day is taken to be received by the recipient at 9.00am on the next Business Day.

  4. In proving that a notice given by email has been received by the recipient, it is sufficient to produce an acknowledgment or receipt that the email has reached the recipient’s email address.

Waiver

  1. A failure of a party at any time to require performance of any obligation under these Terms and Conditions is not a failure of that party’s right to claim damages for breach of that obligation or at any time to require performance of that or any other obligation under these Terms and Conditions, unless written notice to that effect is given in accordance with these Terms and Conditions.

  2. Waiver of any provision of or right under these Terms and Conditions must be in writing and given by or on behalf of the party entitled to the benefit of that provision or right and is effective only to the extent set out in the written waiver.

Severance

  1. You and us agree that a construction of these Terms and Conditions that results in all provisions being enforceable is to be prepared to any other construction.

  2. If, despite the application of the foregoing, a provision of these Terms and Conditions is illegal or unenforceable: (a) if the provision would not be illegal or unenforceable if a word or words were omitted, that word is or those words are omitted; and (b) in any other case, the whole provision is omitted, and the remainder of these Terms and Conditions continue in force.

Further acts

Each party must, without further consideration, sign, execute and deliver any document and perform any other act that is necessary or desirable to give full effect to these Terms and Conditions.

Party preparing document not to be disadvantaged

No rule of contract interpretation must be applied in the interpretation of these Terms and Conditions to the disadvantage of one party on the basis that it prepared or put forward these Terms and Conditions or any document comprising part of these Terms and Conditions.

Definitions and interpretation

In these Terms and Conditions:

Advance Account means the bank account we operate into which funds are to be transferred by us from Lender(s) when a Borrowing Offer is matched, and from which we transfer funds into your Nominated Account at Settlement.

Borrower means a natural person who has registered as a borrower with us.

Business Day means a day (other than a Saturday or a Sunday) on which banks are open for business in Melbourne.

Collection Service means a service that we operate in order to collect on overdue repayment amounts pursuant to these Terms and Conditions.

intellectual property rights means all present and future rights conferred by statute, common law or equity in or in relation to any copyright, trade marks, designs, patents, business and domain names, inventions and other results of intellectual activity in the industrial, commercial, scientific, literary or artistic fields.

Loan means the Loan Amount lent to a Borrower, via the Platform, and where applicable includes the amount of all compounded and capitalised interest.

Loan Agreement means, in relation to a Loan, the agreement under which that Loan is made, pursuant to which the Loan Amount is advanced to you at settlement in accordance with these Terms and Conditions.

Loan Amount means, as the context requires, the amount that you wish to borrow as set out in the relevant Borrowing Offer or the total amount of the Loan at settlement (inclusive of the fees and charges deductible by us at settlement) as set out in the Loan Agreement.

Loan Application means a process conducted by us or on our behalf through the Website and Platform, which assesses your capacity and eligibility to borrow through the Platform.

Nominated Account means the Australian bank account which you nominate from time to time as the account into which Loan advances are to be deposited for that Loan.