Terms and Conditions

Background

LoanCheckr (Finance) Pty Ltd (ABN 73 634 164 926) ("we," "us," or "our") has developed a product (the "Product") to assist mortgage brokers and their support staff (collectively, "you" or "your") in providing services to their clients. By using the Product, you agree to be bound by these Terms and Conditions.

1. Acceptance of Terms

By accessing or using the LoanCheckr service ("Service"), you agree to be bound by these Terms and Conditions ("Terms"). If you do not agree to these Terms, you may not access or use the Service.

Your acceptance of these Terms is subject to compliance with the mandatory protections under the Australian Consumer Law and the Consumer Data Right, which supersede any conflicting terms in this Agreement.

Description of Service

LoanCheckr is a software-as-a-service (SaaS) platform that provides Mortgage Brokers and their support staff with access to their trail book data, CDR consent management, metrics, notifications, and other features as described on our website.

2. Platform Use and Restrictions

2.1 - LoanCheckr grants you a non-exclusive, non-transferable, non-sublicensable and revocable, licence for the Territory and the Term to access and use the Platform in accordance with the intended use of the Platform in the context of the services provided under this Agreement from time to time (Platform Licence).

2.2 - You agree that:

(a) you will not make any representation or warranties regarding LoanCheckr or the Platform, unless the form and

content has been expressly agreed by LoanCheckr in writing;

(b) you will access the Platform only in the manner described on the Website or as otherwise notified to you by

LoanCheckr in writing from time to time

2.3 - LoanCheckr may issue progressive updates, changes, amendments, or modifications to the Platform (Updates) from time to time. LoanCheckr will provide you with information and documentation (to the extent required for your continued use of the Platform and the Services) regarding Updates. While LoanCheckr intends that access to the Platform should be available on a full-time basis, it is possible that it is unavailable due to maintenance or other development activity.

LoanCheckr will provide you with reasonable notice of any maintenance or development activity, where practical in advance, via email or other electronic communication.

2.4 - You must not and must not permit your Personnel, Users or any other person to:

(a) use the Platform or your Customer Product to alter or interfere with the normal operation, behaviour or functionality of the Platform;

(b) use the Platform to transmit, publish or communicate material that is defamatory, offensive, abusive, indecent, menacing or unwanted;

(c) use the Platform in any way that damages, circumvents, disables, interferes with or interrupts the functioning of the Platform or any component thereof;

(d) introduce malicious programs (including viruses, worms, trojan horses and e-mail bombs) into LoanCheckr’s hardware and software or systems;

(e) reveal your Platform account’s password or any other confidential platform authentication details to others or allow others to use your Platform account;

(f) use the Platform to carry out security breaches or disruptions of a network;

(g) use the Platform (including through any program/script/command, or sending messages of any kind), with the intent to interfere with, or disable, any person’s use of the Platform;

(h) use the Platform to interfere or circumvent, in any manner, LoanCheckr’s rights with respect to the Platform, including circumventing user authentication or security or integrity of any of LoanCheckr’s or LoanCheckr Personnel’s networks, accounts or hosts;

(i) sublicense the Platform for use by a third party (this excludes employees where the user is an ACL hold or a company and those employees have passed criminal and AML/CTF vetting);

(j) create a Customer Product that substantially replicates the Platform or any component thereof;

(k) use the Platform in any manner to violate or aid in the violation of any third party Intellectual Property, including but not limited to another’s copyrights, trade secrets, and patents;

(l) attempt to undermine the security or integrity of LoanCheckr Services;

(m) engage in unauthorised use or any disclosure, copying, reproduction, modification, translation, alteration, distribution, decompilation, disassembly or reverse engineering of the Platform or a Service or components of the Platform or a Service and/or associated documentation; and

(n) attempt to gain unauthorised access to any component of the Platform or any materials other than those which you have been given express permission to access.

You agree that all data collection and processing will be conducted based on express, informed, and revocable consumer consent, in line with Privacy Safeguard 1 of the CDR legislation. Users may withdraw their consent at any time, and this will cease all data processing immediately unless required by law.

3. Users

3.1 - You agree that Users are your service recipients and that in your use of the Platform and receipt of the Services, you will, and will cause your Personnel and service recipients who you give access to the Platform and/or the Services to only use the Platform and the Services for the purpose for which they are intended, as provided, and in accordance with instructions and documents supplied, and the Platform Use and Restrictions in clause 2 above.

3.2 - You acknowledge and agree that you shall remain liable for the actions of your Personnel and any User to whom you give or allow access to the Platform or Services, as if they were your actions.

3.3 - You represent, warrant and undertake that all Users registered on the Platform:

(a) have given you their express consent for the collection, use, disclosure, and de-identification of User Data, as required for the matters contemplated by this Agreement;

(b) have not entered into any agreement with you that is in breach of the provisions of this Agreement; and

(c) have not entered into any agreement with you that in any way diminishes, reduces or eliminates any of LoanCheckr’s rights regarding the Platform, the Services or otherwise under this Agreement.

3.4 - You are responsible for authorising any person to who you give access to User Data, and you agree that LoanCheckr has no obligation to provide any person or entity with access to such User Data without authorisation from you or the User and LoanCheckr may refer any requests for access to the User Data for you to address.

3.5 - If a User contacts LoanCheckr to request that any information that LoanCheckr holds about that User be amended or deleted, LoanCheckr may request information from you in relation to the relevant User as is reasonably necessary in order for LoanCheckr to comply with the User’s request. You agree to provide LoanCheckr with the information requested as soon as reasonably practicable. Neither Party shall be obliged to do anything under this clause 3.5 that could put the Party in breach of any Laws (including Privacy Laws). In the event a Party considers an action to be required under or in breach of any Laws, the Parties will inform each other promptly to the extent permitted by Law.

4. Dependencies and Reliance

4.1 - The obligation of LoanCheckr to provide Services in a timely manner is dependent on and expressly subject to the availability and functioning of the Customer Product, your and your User’s operating systems and internet connections and third party data sources (including their websites and systems). If LoanCheckr fails to provide or delays in providing all or part of the Services due to the failure of you, any User or third party data source, LoanCheckr shall have no responsibility or liability for such failure or delay.

4.2 - LoanCheckr will maintain a business continuity plan with the goal of minimising any disruption to the Services in the event that LoanCheckr deems that an event has occurred that may impact its critical business functions. LoanCheckr will review and test its business continuity plan at least once each calendar year. You acknowledge that you have your own safeguards and back-up processes in place to recover from any failures or loss of User Data which might occur while using the Platform or Services.

4.3 - Where LoanCheckr has to rely on instructions, requests or information issued by you, LoanCheckr shall be entitled, without further enquiry, to execute or otherwise act upon such instructions, requests or information as long as it reasonably appears that they originated from you and your Personnel. Such execution or action shall constitute good discharge by LoanCheckr of its obligations under this Agreement.

5. General Obligations

5.1 - Each Party acknowledges and agrees that it is and shall continue to be responsible, at its own cost, for its compliance with Laws which are applicable to it and will perform its obligations under this Agreement in compliance with all Laws.

5.2 - Each Party will (at its own cost) obtain, hold, and maintain all filings, licenses, permits, consents, certificates, authorisations and approvals as may be required pursuant to any Laws or otherwise in order for it to (1) conduct its business and (2) perform its obligations under this Agreement.

5.3 - Each Party will advise the other of any specific request or directive made to them by any Regulator or of any changes or proposed changes in Laws of which they become aware that will or may affect this Agreement, the Platform or the Services.

5.4 - Each Party will inform the other promptly if any unauthorised access or use of the Platform or Services or any breach of security occurs.

5.5 - You agree to, and will oblige your Personnel and service recipients to, comply with our reasonable directions, requests or requirements regarding the Platform and the Services, including operating requirements or terms of use, as may be provided to you or published by LoanCheckr on its Website from time to time.

5.6 - You agree to, and you will ensure your Personnel, service recipients and Direct or Indirect OSPs:

(a) comply with LoanCheckr’s reasonable directions, requests or requirements; and

(b) provide any information or assistance reasonably requested by LoanCheckr, to enable LoanCheckr to comply with its obligations under the CDR Rules and the Competition and Consumer Act.

6. Warranties

6.1 - Each Party represents and warrants to the other Party that:

(a) it is properly constituted and has the right and authority to enter into this Agreement;

(b) entering into this Agreement will not put it in breach with any existing obligations;

(c) no gifts, preferments, privileges, advantages, promises, undertakings or other inducements (in any form) have or will be offered in relation to this agreement and any services LoanCheckr may offer in the future and there is no arrangement, understanding or undertaking, whether by contract or otherwise, that a person has agreed to make any such payment(s); and

(d) it is not subject to an Insolvency Event.

6.2 - LoanCheckr represents, warrants and agrees that it:

(a) will provide the Services with due care and skill; and

(b) is able to lawfully grant access to the Platform.

6.3 - You represent, warrant and agree that:

(a) you are able to lawfully access the Platform in clause 7.5;

(b) all information and documentation that you provide to LoanCheckr in connection with this Agreement is true, correct and complete;

(c) unless expressly permitted under this Agreement, the Platform is provided to you solely for your benefit and you will not (or you will not attempt to) disclose, or provide access to, the Platform and Services to third parties without LoanCheckr’s prior written consent;

(d) you hold and will maintain a valid ABN which has been advised to LoanCheckr

6.4 - To the extent permitted by Law, and except for the express warranties described in this Agreement, LoanCheckr excludes all other express and implied warranties or guarantees, and all material, work and services (including the Platform and Services) are provided to you without any additional warranties or guarantees of any kind, either express or implied, whether in statute, at Law or on any other basis.

6.5 - Nothing in this Agreement excludes, restricts, or modifies any consumer guarantee, right or remedy conferred on you by Law that cannot be excluded, restricted or modified by agreement between the Parties (Mandatory Remedy). However, to the fullest extent permitted by Law, LoanCheckr’s liability for any Mandatory Remedy is limited to the resupply of goods or services or the payment of the cost for the resupply of the goods or services.

7. Intellectual Property

7.1 - This Agreement does not assign or license any right, title or interest (including any Intellectual Property Rights) in or to the Intellectual Property which is owned by either Party as at the Effective Date (Pre-Existing IP). All Intellectual Property which is subsequently created by a Party independently of this Agreement or independently of the performance of the Services remains owned exclusively by that Party.

7.2 - In the event a Party makes suggestions for new features, modifications, improvements, corrections, or discoveries regarding the other Party’s Intellectual Property (including Pre-Existing IP) whether alone or in conjunction with the other Party (Modification), the Party suggesting the Modification absolutely and unconditionally assigns to the other Party all right, title and interest (including Intellectual Property) in any such Modification immediately upon its creation (whether or not it is protected or capable of protection).

7.3 - All Intellectual Property in the Platform and Services developed, adapted, modified or created under or pursuant to this Agreement is and will remain owned exclusively by LoanCheckr and you absolutely and unconditionally assign to LoanCheckr all right title and interest (including Intellectual Property) immediately upon its creation.

7.4 - You must not, and must not allow your Personnel or any User to:

(a) modify, alter, copy, adapt or produce, in whole or in part, any of LoanCheckr’s Intellectual Property;

(b) reproduce, retransmit, distribute, disseminate, sell, rent, lease, sub-license, publish, broadcast or circulate any of LoanCheckr’s Intellectual Property to any third party;

(c) decompile, disassemble, reverse assemble, reverse engineer, reverse compile the Platform or Services or otherwise attempt to derive the Platform Code from the Platform or any other software provided to you by LoanCheckr;

(d) cause any of LoanCheckr’s Intellectual Property to be framed or embedded in another website, or create derivative works from any of LoanCheckr’s Intellectual Property;

(e) resell, assign, transfer, distribute or make available the Intellectual Property, including the Platform and Services, to third parties;

(f) “frame”, “mirror” or serve any of the Intellectual Property, including the Platform and Services on any web server or other computer server over the Internet or any other network; and

(g) alter, remove or tamper with any trademarks, any patent or copyright notices, any confidentiality legend or notice, any numbers or any other means of identification used on or in relation to the Intellectual Property, including the Platform and Services.

7.5 - You grant LoanCheckr a limited licence to use, copy, transmit, reference, disclose, store and back-up or otherwise access, any Intellectual Property which subsists in any materials you provide in connection with your use of the Platform and Services, or otherwise made available by you to LoanCheckr via the Platform and the Services (including the User Data) solely to:

(a) supply the Platform and Services to you (including to enable you and your Users to access and use the Platform), including to perform fraud screening;

(b) diagnose problems with the Platform and the Services;

(c) enhance and otherwise modify the Platform and the Services; and as reasonably required to perform its obligations under this Agreement.

8. Confidential Information

8.1 - Each Receiving Party agrees:

(a) not to disclose the Confidential Information of the Disclosing Party to any third party;

(b) to use all reasonable endeavours to protect the Confidential Information of the Disclosing Party from any unauthorised disclosure; and

(c) to only use the Confidential Information of the Disclosing Party for the purposes for which it was disclosed or provided by the Disclosing Party, and not for any other purpose.

8.2 - The obligations in clause 12.1 do not apply to Confidential Information that:

(a) is required to be disclosed in order for the Parties to comply with their obligations under this Agreement;

(b) is authorised to be disclosed by the Disclosing Party;

(d) must be disclosed by Law or by a regulatory authority, including under subpoena.

9. Limitation of Liability

9.1 - Despite anything to the contrary, to the maximum extent permitted by law, LoanCheckr will not be liable for, and you waive and release LoanCheckr from and against, any Liability caused or contributed to by, arising from or connected with:

(a) your or your Personnel’s acts or omissions;

(b) any use or application of the Platform or Services by a person or entity other than LoanCheckr;

(d) contaminations or damages to your or your Personnel’s or User’s computer, system or network;

(e) delays, interruptions, inaccuracies, errors or omissions arising out of or in connection with your use of the Platform and Services;

(f) the reliability, accuracy, currency, suitability, legality or completeness of the information collated in the Platform, including the User Data, or the forms or results produced by the Platform or Services;

(g) any error or omission in the Assumptions; or

(h) any loss or corruption of User Data.

9.2 - Despite anything to the contrary (except for any indemnity owed pursuant to clause 10.4), to the maximum extent permitted by law:

(a) neither Party will be liable for Consequential Loss, even if a Party has been advised of the possibility of such Consequential Loss;

(b) a Party’s Liability under this Agreement will be reduced proportionately to the extent the relevant Liability was caused or contributed to by the acts or omissions of the other Party (or any of its Personnel); and

(c) the maximum aggregate Liability arising from or in connection with this Agreement (including the Platform and Services or the subject matter of this Agreement) will be limited to and must not exceed in the aggregate for all claims the total amount of Fees paid to LoanCheckr under this Agreement.

10. Indemnity and Insurances

10.1 - Each Party (Indemnifier) agrees to indemnify the other (Indemnified Party) from and against any and all Liabilities which arise from a claim by a third party to the extent due to the Indemnifying Party’s failure to comply with any Laws applicable to it.

10.2 - You will be liable for and agree to indemnify, defend and hold LoanCheckr harmless from and against any and all Liabilities resulting directly or indirectly from:

(a) your breach of this Agreement;

(b) any misuse of the Platform or the Services by you, your Personnel, Trusted Advisers or Users;

(d) infringement of third party Intellectual Property Rights;

(e) any User Data or information submitted by you or your User that is not authorised, not true, not accurate, not current, not complete, is misleading or a misrepresentation;

(f) any claim brought by a third party, including any Users, arising out of your use of the Platform or Services, including in connection with LoanCheckr’s refusal to provide any persons with access to your User Data in accordance with this Agreement and LoanCheckr making User Data available to any person with authorisation from you; and

(g) your use of the Platform or Services outside of the Territory.

10.3 - The Indemnified Party will promptly notify the Indemnifier of any claims. The Indemnifier is entitled, at its own expense, to defend or settle claim in such manner and on such terms as it thinks fit, provided that in managing the claim the Indemnifier shall not make or agree any admission on behalf of or against the Indemnified Party or agree any settlement which would expose the Indemnified Party to any liability. The Indemnified Party shall:

(a) not do anything that would in any way prejudice or limit the Indemnifier’s ability or options for investigating or defending the claim;

(b) take reasonable steps to mitigate the liability, loss or damage giving rise to the claim; and

(c) provide at the request and expense of the Indemnifier, all information, assistance and authority reasonably necessary to evaluate and effect any defence or settlement of the claim.

In the event the Indemnified Party breaches the provisions of this clause 14.3 the Indemnifier will have no liability in respect of the claim.

10.4 - To the extent permitted by law, you shall keep LoanCheckr, its employees and agents indemnified against all fines and penalties suffered or incurred by LoanCheckr as a result of:

(a) your conduct causing LoanCheckr to be in breach of the CDR Rules (as varied from time to time) or the Competition and Consumer Act; or

(b) any act or omission of any of your Direct or Indirect OSPs, in each case except to the extent that is caused by the negligence, wrongful act or omission of LoanCheckr, its employees or agents. For the avoidance of doubt, you are not an agent of LoanCheckr for the purposes of this clause.

11. Data Usage and Ownership

Trail Book Data: LoanCheckr will access and use your trail book data via Basiq under the Trusted Advisor Model as described by the Consumer Data Right. This data will be used for notifications, metrics, and to gain insights into the overall Australian home loan market.
Customer Data: LoanCheckr will only store customer data obtained through CDR consents while a live consent exists. Data retained after consent termination will be de-identified and used for metrics. All data will be encrypted with 256-bit encryption.
Data Ownership: You own your trail book data as per your agreement with your aggregator. Customers own their personal data and can revoke access at any time.
Data Retention: LoanCheckr will retain de-identified data indefinitely for metrics purposes.
Data Security: LoanCheckr will implement security measures like encryption and regular audits to protect data.

12. Further Liability and Indemnification

Liability for Data Breaches: LoanCheckr will report data breaches to the ACCC, OAIC, and Basiq.
Indemnification: You will indemnify LoanCheckr for any claims arising from your use of the Service or the data it provides.
Limitation of Liability: LoanCheckr's liability for any damages arising from your use of the Service is limited to the extent permitted by law.

13. Fees and Payment

Subscription Fees: You will be charged a monthly subscription fee based on your usage in the previous month.
Payment Terms: Fees are due on the 15th of each month. There are no late fees, but your account will be terminated after 7 days of non-payment.
Billing Disputes: Disputes can be raised by emailing billing@loancheckr.com.au.
Currency: All fees are in Australian Dollars (AUD).
Payment Policy: Please refer to our Payment Policy for further details

14. Termination

Termination by LoanCheckr: LoanCheckr may terminate your account for reasons including, but not limited to, non-payment, violation of these Terms, actions that violate our Data Aggregator agreement with Basiq (for example, unauthorized data sharing or failure to adhere to data security standards as outlined in our agreement with Basiq), or CDR rules.

15. SaaS-Specific Terms

Service Availability: LoanCheckr's uptime commitment is based on AWS's 99% guarantee. There are no refunds for service interruptions.
Software Updates: Updates will be handled via our CI/CD pipeline and communicated to you with at least 24 hours' notice where practical.
Support: 9am to 5pm, Monday to Friday email support is available.

16. Other Considerations

Intellectual Property: All intellectual property rights to the Service belong to FTB Finance Pty Ltd.
Confidentiality: You will maintain the same level of client confidentiality as required under your credit license or credit representative agreement.
Dispute Resolution: Disputes will be handled internally first, then through mediation if necessary.
Governing Law: These Terms are governed by the laws of Australia.

17. Changes to Terms

LoanCheckr may modify these Terms at any time. You will be notified of any changes, and your continued use of the Service constitutes acceptance of the modified Terms.

Last Updated: 26/03/2025