Provided by Flash Partners Pty Ltd (ABN 30 607 885 941)
Australian Financial Services Licence No. 480834
Issue Date: 23rd May 2023
These Terms & Conditions (the “terms”) set out your rights between you and Flash Partners Pty Ltd ACN 607 885 941 trading as Flash Payments (we, us, our) under AFSL number 480834. These terms set out your and our rights and obligations with respect to the account, foreign exchange and payment services provided by us (Services).
In addition, the terms in Schedule 1 to these terms set out specific terms which apply to Wholesale Clients (Additional Wholesale Client Terms).
The Services can be accessed by creating an account on our website at https://flash-payments.com (Account).
(i) these terms and the Flash Terms, these terms will prevail to the extent of the inconsistency;
(ii) these terms and, if you are a Retail Client, the Product Disclosure Statement, the Product Disclosure Statement will prevail to the extent of the inconsistency;
(iii) these terms and, if you are a Wholesale Client, the Wholesale Client Information Statement, these terms will prevail to the extent of the inconsistency; and
(iv) these terms and the Services Agreement, the Services Agreement will prevail to the extent of the inconsistency.
By creating the Account, you agree to be bound by these terms, the Flash Terms, and by the Product Disclosure Statement (if you are a Retail Client) and by the Wholesale Client Information Statement (if you are a Wholesale Client, including if you are a wholesale body corporate client) and by the Services Agreement (if you are a corporate), together the “Transaction Documents”.
To be eligible to use the Services, you must, at all times, satisfy all of the following:
(A) as an individual, you must, at all times, satisfy all of the following:
you are a natural person, at least 18 years old and ordinarily reside in Australia;
you are not included on the DFAT Consolidated List which is published by the Australian Department of Foreign Affairs and Trade and are not subject to any counter-measure under the Anti-Money Laundering and Counter Terrorism Financing Act 2006 (Cth) (AML-CTF Act);
you are capable of entering into a legally binding agreement; and
you are not acting on behalf of an undisclosed principal or third-party beneficiary (if acting as an individual and operating an individual account).
(B) As a corporate, you must at all times, satisfy all of the following:
Be incorporated in Australia, or an overseas jurisdiction recognised and accepted by Flash Payments in its absolute discretion;
Have the power and authority to enter into the Services at all times;
Not be included on the DFAT Consolidated List which is published by the Australian Department of Foreign Affairs and Trade and are not subject to any counter-measure under the AML-CTF Act;
Not be insolvent or about to become insolvent;
Not be in breach of any government or regulatory authorisations, licenses, permits or other approvals that are required to enter into the Services.
(C) As a trustee, you must at all times satisfy the following:
If you are a body corporate, satisfy the criteria listed in paragraph (B) above;
If you are an individual, satisfy the criteria listed in paragraph (A) above;
Provide us with a copy of the trust deed;
Represent and warrant that you have the power and authority under any applicable law and under the trust deed to enter into the Services at all times;
Represent and warrant, at all times, that you are complying with your fiduciary obligations and are acting in the best interest of beneficiaries of the trust by entering into the Services;
Represent and warrant, at all times, that nothing has occurred which renders your trustee indemnity void or unenforceable;
Undertake and agree that if, for any reason whatsoever, you are no longer indemnified out of trust assets or you were acting outside your trustee powers or failing to comply with your fiduciary obligations, that Flash Payments may have recourse to you in your personal capacity to recover any Loss incurred by Flash Payments from providing the Services.
If you cease to satisfy any of the criteria above, you must immediately cease to use the Services and contact us.
You must hold an Account to use the Services.
To establish the Account, you will be asked to input an email (which will be your username) and create a password. You must keep your password confidential and not provide it to any other person. You must not allow any other person to access your Account. We recommend that you enable two-factor authentication in addition to using your email and password to increase Account security and confidentiality. You will be responsible for any Transactions conducted on your Account, even if they have not been initiated or authorised by you. You may change the password to your Account at our website.
Once you have created the Account, you will be able to access the dashboard, which is the landing page from which the Services can be accessed (Dashboard). However, the Account will not be activated (and you will not be able to deposit money to the Account) until you have provided us with the information we require to activate the Account. We may contact you to request this information or include it on the Dashboard.
You must provide us with any information or documentation (such as a copy of your passport, drivers license, constituent documents or other identifying document) we request that is required by us to verify your identity for AML-CTF Act purposes and to otherwise comply with our legal obligations. You consent to us accessing and using various government and private databases for this purpose.
are unable to verify your identity;
consider that you do not meet the eligibility requirements to use the Services; or
otherwise consider that you are not a fit and proper person to use the Services,
We may refuse to open an Account for your or terminate your Account, without any obligation to explain or review our decision.
You are responsible for ensuring the details used on your Account (Personal Details) are accurate and up to date at all times. We will not be liable for any Loss you incur as a result of your Personal Details not being accurate or up to date.
You represent and warrant that any person accessing your Account and providing us with instructions in relation to the Services is properly authorised by you and we may accept and act on any instructions or Transaction orders made through your Account. We are under no obligation whatsoever to verify the accuracy or validity of any such instructions. You agree and acknowledge that we have no liability whatsoever for any Loss you may suffer or incur, directly or indirectly, as a result of your Account being hacked or accessed by an unauthorised person or being affected by any virus, worm or other harmful component. It is your sole responsibility to ensure the security and safety of your Account.
In order to comply with the ASIC Derivative Transaction Rules (Reporting) 2022, Flash Payments may need to obtain a Legal Identity Identifier (LEI) from all entities that trade with it. If you are an entity captured by the ASIC Derivative Transaction Rules (Reporting) 2013, you agree and consent to Flash Payments:
(a) obtaining an LEI on your behalf; and
(b) passing on the cost of obtaining an LEI to you by charging it to your Account together with Flash Payments reasonable administration costs for obtaining the LEI.
Transactions can only be entered into when you have a cleared credit balance in your Account (Account Balance). There is no ability to overdraw your Account.
You can only deposit money into your Account by bank transfer from any bank account or by using the Services and transferring money from an overseas location to the Account, in each case in accordance with our directions. You cannot deposit money by way of debit or credit card payment.
The Account Balance, along with the balance of all other users, is held in a bank account nominated by us from time to time. We are entitled to all interest that accrues from the balances held in the bank account from time to time.
You hereby irrevocably authorise us to deduct from the Account Balance such amounts that you owe us under the Transaction Documents at any time, without prior notice to you.
Your use of the Services is at your own risk. To the maximum extent permitted by law, we are not liable for any Loss you incur (directly or indirectly) as a result of using the Services.
There are three aspects to the Services, namely:
you and us entering into a foreign exchange contract to exchange one currency (pre-converted currency) with another currency (foreign currency) at an agreed effective exchange rate which is the exchange rate less the margin we have quoted (effective exchange rate) (a “Spot FX Contract” or a “Spot Transaction”); and
you and us entering into a contract which confers on you, the obligation to buy or to sell a specified amount of a currency at a specified price within a predetermined point in time that is more than two (2) Business Days after the contract is entered into (“Forward FX Contract” or a “Forward Transaction”).
Both Spot FX Contracts and Forward FX Contracts are referred to in these Terms as Transactions and as foreign exchange contracts. Each Transaction is an individual transaction and forms a separate contract between you and Flash Payments.
We can facilitate the transfer of foreign currency to a recipient overseas that you have specified (Recipient).
Foreign exchange contracts are not entered into on an authorised exchange, such as the ASX. There is no official benchmark exchange rate for currency. The foreign exchange market is referred to as an over-the-counter market, which means that exchange rates between providers will vary.
We trade currencies with third party liquidity providers who may use RippleNet (Ripple) or other trading platforms. We source liquidity from these liquidity providers so that we can execute Transactions.
You agree and acknowledge that we do not transfer (whether inbound or outbound), but merely facilitate the transfer and for this purpose we will choose (and you authorise us to choose) the payments infrastructure and networks that we consider the most appropriate, in our absolute discretion, through which the transfer will be made (Payment Network).
To enter into a Spot Transaction, you must:
comply with any directions we prescribe and comply with the restrictions on the type and amounts (minimum and maximum) of currency that we will convert, which we will prescribe on our website from time to time;
enter the pre-converted currency amount that you wish to convert and designate the foreign currency to review the estimated exchange rate, which includes the margin that we will charge. You can change the pre-converted currency amount to see how that affects the estimated effective exchange rate and the amount of foreign currency that will be converted from the pre-converted currency amount. The estimated exchange rate is indicative only and the effective exchange rate (which is the exchange rate at which conversion will occur) will be confirmed at the quote stage;
ensure that the Account Balance contains sufficient funds to conduct the Spot Transaction;
where the foreign currency amount is being sent to the Recipient, enter the required details of the Recipient;
review the quote that we have provided to convert the pre-converted currency amount that you have selected to the foreign currency you have selected. The quote will include the effective exchange rate, which is the exchange rate we have quoted less the margin. The exchange will occur at the effective exchange rate. Please note that the effective exchange rate may be different to the estimated effective exchange rate; and
confirm that you wish to proceed with the Spot Transaction.
Our quote to you amounts to an ‘invitation to treat’ or an invitation to form a contract on the terms of the quote. If you confirm the quote, your confirmation amounts to an irrevocable offer to us to enter into a spot FX contract on the terms of the quote. We can then accept or reject your offer in our absolute discretion. If we accept your offer (being your confirmation of our quote), then the Spot Transaction becomes immediately binding on you and us and you will be bound to fulfil your obligations under the Spot Transaction, including paying to us the pre-converted currency amount that you wish to convert. You irrevocably authorise us to immediately deduct this amount from the balance in your Account. You cannot reverse or cancel a Spot Transaction once you have confirmed that you wish to proceed (as your confirmation is an irrevocable offer to us to enter into the Spot Transaction).
In a Spot Transaction, the margin will be payable to us in the pre-converted currency, and will be deducted by us before we exchange the pre-converted currency to the foreign currency. We will be bound to convert the pre-converted currency amount to the foreign currency at the effective exchange rate indicated in the quote and where you are sending the foreign currency to the Recipient, we will be bound to facilitate the transfer of that payment to the Recipient through the Payment Network.
To make an offer to enter into a Forward Transaction, you must:
contact our sales support on by emailing email@example.com;
specify the pre-converted amount of AUD that you wish to convert and designate USD as the foreign currency you wish to purchase;
specify the date on which you would like to execute (i.e., enter into) the Forward Transaction (the Trade Date);
specify the date on which the conversion of currency will occur (the Value Date), which must be a date that is more than two (2) Business Days after the date on which the Forward Transaction is entered into;
specify the purpose for the transaction; and
any other information that we require, as notified to you.
Upon receipt of your offer and provided that we consider (in our sole and complete discretion) that the terms of the offer are acceptable, we will confirm the following terms of the Forward Transaction by written notice to you:
the relevant forward exchange rate offered. This forward exchange rate includes Flash Payments margin on the Transaction. Please refer to the relevant Fee section of the applicable Transaction Document or to our quote;
any applicable fees or transmission costs (Transaction Fees);
any requirement to pay a deposit (called Initial Margin); and
the date by which sufficient funds must be in cleared funds in your Account.
We may also specify the date or time by which the Confirmation will lapse. Once such date or time lapses, the Confirmation for that Forward Transaction is voided. The Confirmation is a quote only. It is an ‘invitation to treat’ or an invitation to you to enter into a forward FX contract on those terms. By confirming our quote, you offer to enter into a contract with us on the terms set out in the quote (and in the Transaction Documents). We may accept or reject your offer in our absolute discretion. If we accept your offer, then a contract between you and Flash Payments arises and you will be legally bound by the terms of the Confirmation, these terms and the Flash Terms (as well as, if applicable, the Product Disclosure Statement, the Wholesale Client Information Statement and the Services Agreement).
The contract between you and Flash Payments arises:
if you book the Forward Transaction by email, at the point in time we process your email offering to enter into a forward FX contract on the terms contained in our quote . We will confirm the date and time of acceptance to you on the Dashboard; or
if you book the transaction by phone after agreeing to the terms in our quote, at the point in time when the telephone call concludes; or
if you select a link on the Dashboard or in your Account which indicates your offer to enter into a forward FX contract on the terms of the quote, at the point in time when you click that link (if we provide any such functionality).
When you accept the Confirmation and make an irrevocable offer to us to enter into a forward FX contract, you agree and undertake:
to ensure your Account holds sufficient cleared funds to settle the Initial Margin and all applicable Transaction Fees;
for the Initial Margin and all applicable Transaction Fees to be automatically deducted from your Account;
to immediately comply with any Margin Calls that may be made in relation to the Forward Transaction, in accordance with these Terms; and
If we decline to accept an offer from you to enter into a Forward Transaction or the Confirmation lapses before you accept the same, we may charge you an administration charge, which will be set out on our website at https://flash-payments.com. The administration charge will be automatically deducted from your Account and you hereby irrevocably authorise us to deduct any such administration charges from your Account.
At the time that you enter a Forward Transaction, Flash Payments we require you to have available in your Account, an initial amount payable by you as collateral on booking the Forward Transaction (“Initial Margin”). Flash Payments determines the quantum of the Initial Margin in its sole and complete discretion. The quantum of the Initial Margin will be specified as part of the terms of the Forward Transaction and will be a value of 10% of your notional Forward Transaction. You will not be permitted to enter the Forward Transaction unless and until a sum equal to the Initial Margin has been deposited in cleared funds in your Account.
At any time up until the Value Date of the Forward Transaction, Flash Payments may require you to deposit additional funds into your Account as part of that Forward Transaction (the “Margin”). Flash Payments will give you 24 hours notice either by email or phone call that a Margin is due and payable.
Flash Payments may, in its absolute discretion: (a) amend, vary or change the Initial Margin percentage level, and require additional funds to be held as Initial Margin; or (b) increase the quantum of the Margin due to movement in exchange rates, an increase in its assessment of the risk of the position you hold, or for any reason whatsoever; or (c) put in place a Margin where there was no Initial Margin (each, a “Margin Call”).
In assessing whether a Margin Call is required, Flash Payments may, in its sole and absolute discretion, calculate and determine the reasonable value of a Forward Transaction at any time.
Following a Margin Call, Flash Payments may promptly deduct funds from your Account to satisfy the quantum of the Margin specified in the Margin Call. If at the time Flash Payments makes (or attempts to make) the deduction from your Account to satisfy the Margin Call, your Account holds insufficient funds to cover the Margin Call, you will be in default of the Forward Transaction in respect of which a Margin Call was made, and in default of these General Terms. If you are in default under a Forward Transaction, or in default of these General Terms, Flash Payments may, without limiting any of its other rights under any of the Transaction Documents (as relevant), in its sole and absolute discretion and without further notice to you, terminate or cancel the affected Forward Transaction or otherwise take any of the other actions set out under “Default” below.
You will be liable for any Loss that we incur, directly or indirectly, due to or in connection with your default under or the early termination of a Forward Transaction. This may mean that you forfeit any Initial Margin you paid to us, and any other payments you made in connection with the Forward Transaction. You may also be liable for the difference between the amount in your Account paid towards a Margin Call, and the total sum of that Margin Call, where your Account does not hold sufficient funds to pay that Margin Call in full.
The occurrence, at any time, of any of the following events constitutes an event of default with respect to you:
you fail to make, when due, any payment under any of the applicable Transaction Documents, including, without limitation the Initial Margin, the Margin Call, or any Transaction Fees;
you fail to comply with or perform any other agreement or obligation you have under any of the applicable Transaction Documents, and you fail to remedy such breach within 24 hours of notice from Flash Payments;
any warranty or representation you have made or repeated or were deemed to have made or repeated to us proves to have been incorrect or misleading in any material respect when made or repeated or deemed to have been made or repeated;
you become bankrupt or experience an Insolvency Event;
you become a Politically Exposed Person or otherwise are in breach of any AML/CTF requirements;
it becomes unlawful under any applicable law (including without limitation the laws of any country in which payment, delivery or compliance is required) to enter into a Transaction or make or receive any payment or comply or perform with any obligations in respect of a Transaction;
a government or regulatory authority imposes new obligations on us that are reasonably likely to have a regulatory or economic impact that we cannot perform our obligations under any of the Transaction Documents at all, or are unable to perform the same without undertaking or incurring substantial additional expenditure, liability or Loss;
if you are a trustee of a trust, you cease to be trustee of the trust for any reason whatsoever;
if you are trustee of a trust, the liabilities of the trust fund exceed the market value of its assets or the trustee is unable to satisfy all its liabilities incurred as trustee in full by proper recourse to the trust’s assets; or
we determine, in our absolute discretion, for any reason whatsoever, that we no longer wish to provide the Services to you.
If, at any time, an event of default has occurred, Flash Payments may, in its absolute discretion take any one or more of the following actions:
close or suspend your Account;
make a Margin Call;
close all or any of the Transactions with you;
terminate all or any of the Transaction Documents with you;
calculate any losses or costs that are or would be incurred by Flash Payments as a result of the default or the termination of any or all Transactions;
calculate any amount that Flash Payments owes to you as a result of closing or terminating any or all of the Transactions;
immediately deduct from your Account any actual or contingent amount owing to Flash Payments as a result of the default, the termination or closure of any or all Transactions, any Transaction Fees accrued, or any Loss incurred by Flash Payments ;
set off any amount which Flash Payments owes to you against any amount you owe to Flash Payments . To the extent that any amounts are so set off, those amounts will be discharged promptly and in all respects. For the purpose of effecting set off, Flash Payments may convert any amount owing between us into a currency determined by Flash Payments in its absolute discretion at the rate of exchange prevailing on the date Flash Payments exercises its discretion; or
take any other action or remedy under any of the Transaction Documents or otherwise.
You acknowledge and agree that:
you have entered the correct bank identifier code and account details of the Recipient and you acknowledge that if they are incorrect, it may not be possible to recover those funds once they are credited to an incorrect bank identifier code or account number. We will not be liable for any Loss you incur if you are not able to receive or recover those funds;
we rely on aggregated third-party information sources and resources (including exchange rates from third-party ‘liquidity providers’);
we are only obliged to make a reasonable effort to access foreign exchange rate liquidity that is aligned to global currency market rates;
we do not guarantee that the applicable exchange rates at any given time will match a particular benchmark rate;
we are not liable for any Loss that results from the effective exchange rate being less than the estimated exchange rate or less than you anticipated or less competitive than other rates offered by other institutions or dealers;
once you confirm that you wish to proceed with a Spot Transaction, that Spot Transaction is irreversible and the pre-converted currency amount will be converted to the foreign currency amount and where that money is being sent to the Recipient, will be sent to the Recipient immediately;
we may prescribe minimum and maximum transfer amounts, and we may refuse to enter into or otherwise process the Transaction if the amounts to be transferred do not fall within the prescribed amounts;
the maximum amount of currency accepted for exchange will dynamically vary based on conditions;
we facilitate payments only, and payments are processed externally to our Services by the Payment Network;
where we have provided you with directions to enable you to transfer money you hold overseas to your Account, we will not be liable for any Loss you incur in connection with the transfer of the money to the overseas bank account we have prescribed or by us facilitating the transfer of that money from the overseas bank account to the Account. We will only be able to undertake a Transaction once the money transferred from overseas has cleared in your Account.
Notwithstanding any other provision of these terms, we have the discretion to refuse to enter into, or terminating a Transaction for any reason, even if you have confirmed that you wish to proceed with the Transaction (a “Refused Transaction”). We will not be liable for any Loss you incur as a result of a Refused Transaction.
You may be liable to us for an administration charge that is incurred in respect of a Refused Transaction and you authorise us to deduct the administration charge from the amount which we credit to your Account.
Without limiting any other obligation that you have under these terms, you must:
not create another Account after we have terminated your use of the Services;
not act in a way which breaches these terms or the Flash Terms;
not engage in any action or practice that reflects poorly on us or otherwise disparages or devalues our reputation or goodwill;
immediately notify us at firstname.lastname@example.org if you detect an error in a Transaction sent or received;
immediately notify us at email@example.com if you become aware that you have received an over-payment, in which event, you authorise us to promptly deduct from your Account Balance the amount which represents the over-payment; and
comply with any procedures or directions that we post on our website at https://flash-payments.com from time to time with respect to the use of our Services.
Without limiting our rights, we may, from time to time and without seeking your consent or providing you with notice:
establish general practices and limits concerning the use of the Services which you will be bound to comply with;
change, suspend, discontinue any aspect of our Services (or any Service features);
restrict access to all or part of any Services;
investigate any suspicious activity or Transaction or any suspected breach by you of these terms or the Flash Terms;
report suspected unlawful activity to any appropriate person or government body or authority; and
provide any appropriate person or government body or authority with such assistance and information (including your personal information) which we consider appropriate or which we are requested to provide.
If you establish an Account as a result of being referred to us under our referral program and you meet the Eligibility Criteria (as defined in the Referral Program Terms), you will be entitled to receive a referral fee of $25.
We will credit the referral fee in your Account Balance within 2 weeks after we determine that you have met the Eligibility Criteria. We can deduct the referral fee from your Account Balance at any time if we subsequently determine that you were not initially entitled to it.
Unlike other funds that comprise the Account Balance, the amounts comprising the referral fee must be used to enter into a Transaction and send currency overseas and cannot be withdrawn.
You can withdraw some or all of your Account Balance at any time other than funds which relate to any referral fee you have received (these funds must be used in a Transaction). We will transfer those funds to the bank account nominated in your Personal Details, however prior to transferring those funds, we have the right to deduct some or all of the Account Balance towards the repayment of money you owe to us.
If we are unable to transfer the funds to the bank account nominated in your Personal Details (i.e. due to them being incorrect), we will promptly contact you (using the contact details set out in your Personal Details).
We may charge you a fee for each Transaction, which will be disclosed to you before you proceed to confirm the Transaction (Transaction Fee). The Transaction Fee is different to the margin which we charge to provide you with the Services. The Transaction Fee may vary between Transactions. By entering into any Transaction that has a Transaction Fee, you agree to pay us the Transaction Fee. The Transaction Fee will be payable to us in the pre-converted currency, and will be deducted by us before we exchange the pre-converted currency to the foreign currency.
In addition, you agree that:
administrative charges may be incurred if the relevant settlement bank or receiving bank refuse any transfer of funds (i.e. due to incorrect payment details, any applicable regulatory requirements or any other valid reason); and
the settlement bank or receiving banks which facilitates the sending or payment of funds may impose their own additional fees or charges, which in either case will be automatically deducted from the funds which are returned to you or transferred to the Recipient.
No investment advice
Any information provided by us is provided for informational purposes only (including comparative or other hypothetical information such as hypothetical saving amounts), and is not a recommendation or endorsement by us to buy or sell a particular currency. This information has been prepared without taking into account your personal circumstances, needs or objectives. Nothing is intended to constitute investment, legal, tax, accounting or other professional advice and you should not rely on this information when using the Services. You should receive professional advice if you are in doubt.
Intellectual property rights
We retain sole and exclusive right, title, and interest to our Intellectual Property and all aspects of the Services.
There are no implied licenses under these terms, and any rights not expressly granted are reserved by us. Except for the licenses expressly set out in these terms, these terms do not transfer any Intellectual Property rights between the parties. The licenses granted pursuant to these terms will end at the expiry of the Term, or on termination of these General Terms, at which time you must immediately cease using any of our Intellectual Property.
During the Term:
we grant you a revocable, non-exclusive, non-transferable license to use the Services; and
to enable the synchronisation of the Services across multiple devices, you grant us with an irrevocable license to distribute, copy, store, cache and transmit your information and data.
Representations and warranties
You represent and warrant to us that:
unless you are a trustee, you are acting as principal;
your use of the Services is for a legal and legitimate purpose;
you have read, understood and agree to these terms and the Flash Terms;
you satisfy the eligibility criteria which are set out in these terms;
all information supplied by you to us is true, complete and accurate in all respects and you will notify us promptly update your Personal Details if there is any change; and
you rely on your own knowledge and judgment in using the Services and will seek such advice as required and assume full responsibility for any Transaction.
If you are a trustee, you represent and warrant to us that:
you have been properly appointed as trustee of the trust;
you are empowered under the trust deed to enter into and perform your obligations under these Terms and any of the applicable Transaction Documents;
you are absolutely entitled to pass full legal and beneficial ownership of all assets you provide to us, including funds into the Account, under these Terms or any of the applicable Transaction Documents, free of all encumbrances or adverse interests;
you are not in breach of the trust;
you have the right to be indemnified out of the assets of the trust for all obligations under these Terms and any applicable Transaction Documents;
you have not lost and will not do anything or omit to do anything which may jeopardise or cause you to lose or in any way compromise your right to be indemnified in full out of trust assets in respect of your obligations under these Terms and each applicable Transaction Document;
you are not acting in breach of your fiduciary duties in entering into these Terms, any of the applicable Transaction Documents or any particular transaction under these Terms.
Each representation and warranty above is repeated each time you access the Services.
Although we intend to take reasonable steps to protect the integrity and reliability of the Services, the Services are provided on an ‘as-is’ and ‘as-available’ basis. To the maximum extent permitted by law, we do not provide any warranties or guarantees (whether express or implied by law) with respect to the Services, including:
that the Services will be uninterrupted, timely, reliable, secure, error-free or free of any virus, worm, trojan horse or other harmful component; and
that the Services are merchantable, fit for a particular purpose or of acceptable quality.
To the maximum extent permitted by law we do not guarantee the absence of breakdowns, operational failures, unavoidable delays or other similar causes. These may be caused may various factors, many of which are outside our control, including:
down time and scheduled maintenance;
outages to any public internet backbones, networks, services or other infrastructure;
disruptions or issues affecting the settlement or receiving bank or the Payment Network;
equipment failure, including the failure of third-party systems such as international or local access systems; or
Force Majeure event.
Limitation of liability
Under no circumstances will we be liable to you for any indirect, incidental or, special and/or consequential damage or loss of profits, goodwill or reputation including, without limitation, damages arising out of an action under contract, negligence or any other theory or for any loss or consequential loss including any business profits, business information, business reputation, business opportunity, goodwill or any business interruption or other pecuniary loss or any incidental damages, punitive damages or exemplary damages whatsoever that arise in relation to, or in connection with, your use of the Services.
However, the Competition and Consumer Act 2010 (Cth), may impose consumer guarantees or imply warranties or conditions or impose obligations which cannot be excluded, restricted or modified, or cannot be excluded, restricted or modified except to a limited extent. These terms must be read subject to these statutory provisions. If these statutory provisions apply, to the extent to which we are entitled to do so, we limit our liability in respect of any claim under those provisions to, at our option, the re-supply of the relevant services or payment of the cost of having the relevant services supplied again.
This provision will survive termination of your use of the Services.
To the maximum extent permitted by law, you agree to indemnify us and keep us indemnified, and must pay to us on demand all Loss incurred by us or arising in connection with, directly or indirectly:
your use of the Services or inability to use the Services; or
your breach of these terms or the Flash Terms.
These terms may be pleaded as a bar by us to any action, claims, suit or proceedings by you arising out of, or in connection with, these terms or the Services.
If you are a trustee of a trust, you agree to indemnify us and keep us indemnified, in your personal capacity and must personally pay to us on demand all Loss incurred by us or arising as a result of your right to be indemnified out of trust assets no longer applying or being lost, for any reason whatsoever.
This provision will survive termination of your use of the Services.
the purposes for which we collect your personal information;
the consequences if you don’t provide your personal information to us;
the third parties to which we disclose your personal information;
how to access and seek correction of your personal information;
how to complain about a breach of our obligations in respect of your personal information and how we will deal with such a complaint; and
whether your personal information is likely to be disclosed by us to overseas entities and in which countries these entities reside.
Suspension and termination
We can suspend your use of the Services if we suspect that you have breached these terms or the Flash Terms. While you are suspended, you will be able to access your Account but will not be able to withdraw your Account Balance or initiate Transactions.
We may, at any time and without providing notice to you, terminate your access to the Services:
without cause at our absolute discretion;
if a Force Majeure Event occurs;
if you have breached a provision of these terms or the Flash Terms and have not remedied the breach to our reasonable satisfaction within 10 days after we notify you of the breach;
if your Account has a nil or immaterial balance and has not been accessed for at least 2 years; or
upon receiving a written request from you to close your Account but only if there are no pending Transactions and no amounts owing or payable by you to us under these terms.
Upon termination, you will be deemed to have elected to withdraw your Account Balance and the withdrawal provision in these terms will apply.
We may use electronic means such as email and notices posted on the Dashboard to communicate with you in relation to the Services and these terms.
You will be deemed to receive the communication once it is sent to your nominated email address (which is included in your Personal Details) or posted on the Dashboard.
You are entitled to request an electronic communication to be resent or to order a paper copy, but we reserve the right to charge a reasonable fee for such additional service.
Disclaimer on timing where third parties involved in the transaction
You should be aware that banks and other third-party liquidity providers we use have fixed cut off times for the receipt and dispatch of electronic payments. We are not responsible for and have no liability for any delay in or failure of any transaction which results from a late arrival of funds or from late receipt of instructions.
These terms are governed by the laws in force in New South Wales and the parties submit to the non-exclusive jurisdiction of the courts in that jurisdiction.
We can unilaterally vary these terms at any time, by providing notice on the Dashboard that the terms have been varied. By accessing or continuing to access the Services after we have provided that notice, you are deemed to have accepted the varied terms.
Your use of the Services is personal, and cannot be assigned to any other person without our prior written consent. We can assign the Services to any other person by providing notice to you.
If any term is declared unlawful, void or unenforceable, that term will be deemed severable and will not affect the validity and enforceability of the remaining provisions of these terms.
You and we are independent contractors and these terms do not create or imply any partnership, agency, or joint venture.
Any failure by us to enforce any provision of these terms will not be deemed a waiver of our ability to enforce the same provision of these terms at a future date.
Definitions and interpretation
In these terms, unless otherwise indicated:
the singular includes the plural;
where a party comprises more than one person, these terms apply to all of them together and each of them separately;
wherever include or any form of that word is used, it is construed as if it was followed by without being limited to;
a reference to a party or person includes an incorporated body, natural person or other associations of persons;
Business Day means a day that is not a Saturday, Sunday or a public holiday or bank holiday in the place concerned.
Force Majeure means an event including an act of God, storm, tempest, war, terrorism or threat of terrorism, revolution, civil strife, plague or epidemic, industrial action, strike, fire, flood, public disaster, failure or delays of scheduled transportation, interruption of essential services or public utilities, governmental intervention or exercise of authority or other similar event which is outside our control;
Intellectual Property means all patents, copyright, designs, trade marks (whether or not registered), business and company names, domain names, and all other rights or forms of protection having an equivalent or similar nature or effect whether within or outside Australia, whether registered or not and including all rights of action, powers and benefits of the foregoing;
Loss means any claim, action, proceeding, demand, cost, damage, loss, expense (including reasonable legal costs on a full indemnity basis), liability incurred or suffered by, or brought or made or recovered against any person and however arising (whether or not presently ascertained, immediate, future or contingent); and
Term means the period beginning from when you open an Account and ending on the date the Services are terminated in accordance with these terms.
Schedule 1 – Additional terms and conditions for Wholesale Clients
The terms and conditions in this Schedule 1 form part of the General Terms & Conditions (the “Terms”). If there is any conflict between the terms in this Schedule 1 and the other provisions of the Terms or the Flash Terms, then the terms in this Schedule 1 prevail to the extent of that conflict.
Applicability of Terms
The terms and conditions in this Schedule 1 only apply to Wholesale Clients. A Wholesale Client is a person that satisfies any one of the requirements to be categorised as a Wholesale Client under the Corporations Act 2001.
We will require appropriate evidence to support your eligibility as a Wholesale Client. Flash Payments can categorise you as a Wholesale Client pursuant to section 761G(7) of the Corporations Act 2001 (Cth) (Wholesale Client) if you provide us with a copy of a certificate from a Qualified Accountant (within the meaning of that term given by section 88B of the Corporations Act 2001) that states that:
(a) You have net assets of at least AUD 2.5 million; or
(b) Gross income for each of the last 2 financial years of at least AUD 250,000 a year; or
(c) You transact a value of at least AUD 500,000 in the financial product; or
(d) You transact the financial product as a business that is not a small business, but a business with at least 20 employees; or
(e) You are a ‘professional investor’.
The certificate is valid for two years from the date of issue.
You must inform Flash Payments if you no longer meet the criteria to be considered a Wholesale Client.
Application of Related Documents
Flash Payments does not have obligations to Wholesale Clients under Chapter 7 of the Corporations Act 2001 that we otherwise have if the product or service were provided to a Retail Client.
We may, from time to time, voluntarily provide some of the Retail Client protections to you, at our absolute discretion, and the provision of such protections at any particular time does not create any entitlement for you to their continued provision and does not affect our right to treat you as a Wholesale Client. We may treat you as a Retail Client, at any time at our absolute discretion.
Any Product Disclosure Statement (PDS) or Financial Services Guide (FSG) that Flash Payments issues applies only to Retail Clients (as defined in the Corporations Act 2001) and does not apply to Wholesale Clients. Wholesale Clients are not permitted to rely on any terms contained in any such PDS or FSG.
You must read and consider the Wholesale Client Information Statement carefully before you open an Account or initiate any Transaction with us and by making application for an Account with Flash Payments, you warrant that you have done so.
Dealing with Wholesale Client Money
You agree and acknowledge that Flash Payments may, to the extent permitted by Part 7.8 of Division 2 of the Corporations Act 2001, use Wholesale Client money for hedging, counteracting or off-setting the risk we incur associated with Transactions we enter into with you and our other clients. Consequently, you hereby authorise Flash Payments at any time to borrow, lend, charge, rehypothecate, dispose of or otherwise use for its own purposes any money in your Account which is being held for the purposes of meeting a Margin Call or entering into a FX contract, without giving you notice of such borrowing, lending, charge, rehypothecation, disposal or other use.
Disputes and Complaint Handling
If a dispute arises between Flash Payments and you relating to any Transaction or any other matter, your dispute will be dealt with in accordance with Flash Payments internal dispute procedure. If a dispute arises between Flash Payments and you relating to any Transaction, Flash Payments may close out or take any other action it considers appropriate in relation to the disputed Transaction, without previously notifying and/or without having received instruction from you.
Flash Payments will try to notify you (verbally or in writing) what action it has taken, as soon afterwards as it practically can, but if it does not, the validity of its action shall not be affected.
As a Wholesale Client, disputes between you and us and any complaints you have in relation to us do not fall within the Australian Financial Complaints Authority’s (“AFCA”) jurisdiction and Flash Payments reserves its rights to not agree to submit to AFCA’s jurisdiction if you attempt to make a complaint to AFCA in relation to Flash Payments.
If however AFCA decides it has jurisdiction over any dispute or complaint you have in relation to us, you hereby authorise Flash Payments to disclose such personal information about you (as defined by the Privacy Act 1988 (Cth)) including, but not limited to, records of interactions between you and Flash Payments as we at our absolute discretion deem appropriate or necessary to enable us to run our case before AFCA.