In this document (and the Agreement generally) the following terms have the corresponding meaning:
“Account” means a financial account held by the relevant person with an Account Provider.
“Account Provider” means a financial institution (or other third party) that provides a financial account to or from which the relevant account holder can credit or debit funds.
“Agreement” means the agreement between you and us, which includes this document and the other documents and policies (as amended from time to time) referred to in clause 2.
“App” means the Bluechain app for either iOS or Android platforms separately provided and licensed by Bluechain to you to enable, amongst other things, your use of the Services.
“Bluechain”, “we”, “us” or “our” means Bluechain Pty Ltd (ACN 129 214 795).
“Bluechain Merchant” means a Merchant that has registered for, and has been authorised to use, the Bluechain Services in order to facilitate payment for goods or services sold by the Merchant to other Users.
“Consumer” means a person who purchases goods or services from a Merchant.
“Content” means any information, software, code, data, configuration or layout files, documents, pictures, graphics, video, audio, text, script or other content, in each case whether in hard copy or electronic form.
“Convenience Fee” means any additional Fee that you agree to pay at the time of making a payment in return for Bluechain providing you with the relevant Services.
“Fees” means the fees, charges, interest and other amounts described in your Merchant Agreement (if you are a Bluechain Merchant) or as specified at the time of the transaction or in the App, as amended from time to time. Unless stated otherwise, all Fees are inclusive of GST, VAT or other similar taxes where the transaction is taking place.
“Insolvency Event” means the happening of any of these events:
- in respect of a body corporate: an order is made that it be wound up, a liquidator, provisional liquidator, receiver, manager, receiver and manager, controller, trustee or administrator is appointed over it or any of its assets or an application is made to a court, or meeting is proposed, to do any of the foregoing, it enters into an arrangement with its creditors or seeks to obtain protection from its creditors or it resolves to wind itself up; or
- in respect of an individual: the individual becomes an insolvent under administration as defined in section 9 of the Corporations Act; or
- anything analogous or having a substantially similar effect to any of the events specified above happens under the law of any applicable jurisdiction.
“Laws” means all applicable laws, regulations, standards, codes, orders and directions, including those issued by any governmental authority.
“Licence Agreement” means the separate agreement between you and us that, amongst other things, grants you a licence to use the App.
“Loss” means any loss, damage, cost, interest, expense, fee, penalty, fine, forfeiture, assessment, demand, action, suit, claim, proceeding, cause of action, liability or damages incurred by a person, and includes legal costs on an indemnity basis and indirect or consequential losses.
“Merchant” means a person who sells goods or services to other persons.
“Payment Provider” means a financial institution or other third party that provides a service of debiting or crediting funds from or to an account held by a person with the relevant Account Provider.
“Registration” means any application completed online or in App by you in relation to use of the Services.
“Services” means the services that we offer from time to time through use of the App and any other incidental or related services that we provide (including the provision of any advice or information).
“Supplier” means any person from whom we purchase any service in connection with the supply of any of the Services.
“Unacceptable Content” means any Content that:
- is racist, hateful, violent, defamatory, harassing, abusive, threatening, malicious, inflammatory or otherwise objectionable;
- is pornographic, sexually explicit, obscene or excessively profane;
- is unlawful or encourages unlawful conduct;
- is fraudulent, false, misleading or deceptive;
- infringes, or encourages the infringement of, a third party’s rights, including intellectual property, confidentiality or privacy rights;
- contains any Virus;
- amounts to commercial advertising of any other website, product or service; or
- contains any link to any website that includes any of the above types of content.
“User” means any person (which may be you) who uses the App or any of the Services and includes both Consumers and Bluechain Merchants.
“User Guidelines” means guidelines produced by us from time to time in relation to the App or Services.
“Virus” means any computer program, virus or other code that is harmful, destructive, disabling or which assists in or enables theft, alteration, denial of service, unauthorised access to or disclosure, destruction or corruption of information, data or software.
2. Nature of this agreement
This agreement forms part of a legally binding agreement between you and Bluechain. In addition to any express acceptance by you (e.g. by clicking on an “I agree” or similar button, in the App or online, in relation to this document), you also agree that your use of any of our Services constitutes acceptance of the agreement.
Apart from this document, the agreement between you and us also includes:
The Licence Agreement (regarding the App) is separate from this agreement.
3. Nature of our services
The Services that we provide include (amongst other things) facilitating payments by or between Users of our Services, to or from the relevant accounts held with third-party Account Providers, using payment facilities provided by third-party Payment Providers.
In providing our Services:
- we are not an Account Provider and, if you are not a Merchant in relation to the relevant payment, we do not at any time hold any of the relevant funds on your behalf;
- we are not a Payment Provider, as we rely upon third party Payment Providers to effect the relevant debit or credit of funds from or to the relevant Accounts held with Account Providers;
- we are not responsible for repayment by you to the relevant Account Provider of the amount of any debt (or increase in debt) that results from any payment validly made as part of the Services from your corresponding account with the Account Provider – that is your obligation and you must do so in accordance with the relevant agreement between you and the Account Provider;
- we have no control over, and are not responsible for any user completing, any other part of the transaction to which the relevant payment relates (e.g. we are not responsible for any Merchant supplying any goods or services to which a payment relates);
- we do not guarantee the identity of any user;
- we do not assess if any tax applies to the payment facilitated through your use of our Services and do not collect or pay any such tax; and
- no agency or partnership relationship applies between us.
4. Provision of Services
Subject to the other terms of the Agreement, we will provide to you the relevant Services for which we accept a Registration from you from time to time.
5. Your key obligations
During the term of this Agreement you must:
- comply with our User Guidelines, and all reasonable directions that we provide in relation to the Services or the App;
- comply with all Laws applicable in any way in relation to the Services or use of the App;
- not use, or attempt to use, the App or our Services to make any payment in excess of any limit that we or your Account Provider have specified or in excess of the balance (or any credit) available in the relevant Account;
- not allow any other person to access the use of the App or our Services in your name, other than an authorised representative (eg. employee of a Merchant);
- not use, or attempt to use, the App or our Services for any purpose other than the facilitation of payments between Users through use of our Services;
- not use the App or any of the Services to transmit any Unacceptable Content;
- not use the Services or App, or permit the Services or App to be used (directly or indirectly) in your name, to commit, or cause to be committed by any person, any offence or wrongful act or omission (including fraud);
- provide all reasonable information and documents (including any transaction statements from your Account Provider) requested by us, including in relation to any payment (or attempted payment) via the Services or App, or any related investigation by us;
- not do or permit to be done, any act which could damage our reputation; and
- comply with all applicable terms of service, rules and policies applying to any Merchant for which you request us to facilitate a payment to.
To use our Services you must be, and you warrant that you are:
- an individual who is at least 18 years old and is legally capable of entering into a contract; or
- a company, or unincorporated association, that is incorporated or registered in your country of operation; or
- a government body; or
- a partnership of any of the above.
You warrant that all information that you provide to us (including in your Registration or any changes you make to the details you have provided to us) are and remain current, true and not misleading or deceptive.
We will register, or provide you with a username and corresponding password, or utilise the embedded access control on your device (e.g. passcode or biometric), or provide you with an access code, which together are the “Login” for your use or activation of the Services.
You must keep the Login (or any device while logged on or unlocked, using the Login) secure and notify us immediately upon becoming aware that the Login or mobile device may be lost or stolen, or becoming aware or suspecting that another person knows the Login, or has used the Login, without your authority.
You are liable for, and we may rely upon, all instructions, approvals, requests and information submitted to us using the Login, even if the information or request is submitted by a person using the Login fraudulently or without your authority. Without limiting the above, we are entitled to treat all use of the Services made using the Login as use that you have authorised, you are responsible for the payment of all Fees that arise in relation to such use, and we are not liable for any payments made from any Account of yours through use of the Login.
5.4 Authorisation by you
Where you request that we facilitate a payment by you using the Services, you expressly authorise us to request the relevant Payment Provider (if applicable) and Account Provider to debit your Account for the relevant amount and transfer it to the relevant other User. See Bluechain Payment Agreement for further information.
6. Warranties and liabilities
6.1 Specific exclusions
To the extent permitted by law:
- we do not promise you continuous or uninterrupted access to any of our Services;
- we do not warrant that any of our Services will be suitable for you or your intended use of them;
- we are not responsible or liable for any Account Provider or Payment Provider declining or refusing to make any payment;
- we do not promise that any payment requested or approved by you using the Services will occur within a particular time (although we will endeavour to procure that it happens in a timely manner);
- we are not responsible or liable for any refund of any payment that is subsequently requested or required by any Account Provider;
- we are not responsible for any Bluechain merchant stores or (with the exception of the Bluechain App) for anything provided by them, and do not guarantee the delivery or quality of any product or service which they may provide to you; and
- you agree that although all payments effected using the Services will appear immediately in the transaction records displayed by the App, we do not control how quickly they will be effected, or shown in the transaction records provided by your Account Provider (or any other User’s Account Provider) and that, depending on the relevant Account Provider, it may take up to several days for such payments to be effected or appear in the transaction records provided by the Account Provider.
6.2 Exclusion of other terms
We will provide the Services with due care and skill. Otherwise, to the extent permitted by law, and except as expressly provided in this Agreement, all terms, conditions, warranties and representations (in each case whether express, implied, statutory or otherwise) relating in any way to the Services, the App or this Agreement are excluded.
6.3 General limitation of liability
Without limiting exclusions stated in this Agreement, to the extent permitted by law, any liability of ours in connection with the Services, the App or this Agreement under any condition or warranty that by law cannot be excluded, under any consumer guarantee or other right under any law, or on any other basis (including contract or negligence), is, where permitted by law, limited at our option to the replacement, repair or resupply of the relevant goods or services or the payment of the cost of same.
6.4 Exclusion of categories of loss
The following applies only to the extent permitted by law. We exclude all liability in respect of any indirect or consequential Loss suffered or incurred by you, in relation to the App or Services, any delay or failure in providing them, or otherwise under or in connection with this Agreement, and in any event (including where amounting to a direct loss) for any loss of interest earned on any Account of yours, any interest charged to you by any person, any lost profits or goodwill or any corrupted data.
6.5 Maximum liability
Without limiting the above, to the extent permitted by law our total liability to you on any basis (including in contract or negligence) relating in any way to the Services or the Agreement is limited to the amount of Fees (if any) actually paid by you to us under this Agreement directly in connection with the payment or circumstances giving rise to that liability.
6.6 Things outside our control
To the extent permitted by law, we exclude all liability in relation to any fault or failure in the supply of the Services involving any act, omission or event outside our reasonable control, including any equipment failure, power failure, fire, flood, water, labour dispute or shortage, utility curtailment, explosion, emergency, civil disturbance, war, act of God, governmental action or act or omission of any Supplier or other person. If we become aware of any such fault or failure, we will use reasonable endeavours to address it.
To the maximum extent permitted by law, you hereby indemnify us and must keep us indemnified against all claims or demands (including all legal fees) from any third party incurred by us as a result of any breach by you of this Agreement, or your breach or infringement of the law or rights of any third party as a result of, or in connection with, your use of any of our Services or the App.
This indemnity may be enforced by us before and without incurring any expense or making any payment to any person.
7. Termination and suspension
7.1 Termination without cause
Either you or we may at any time, without any reason, terminate this Agreement by giving the other at least 30 days prior written notice.
7.2 Termination for cause
Either you or we may terminate this Agreement with immediate effect by notice to the other if either the other party remains in unremedied breach of this Agreement after 7 days notice from the terminating party specifying reasonable details of the breach, or the other party is, or becomes, the subject of any Insolvency Event.
7.3 Effect of termination
The termination of this Agreement will not affect the accrued rights of either party as at the date of termination. Clauses 1, 2, 3, 4, 5 ,6, 7, 8, 9 and 10 will survive the termination of this Agreement, as will any other provision that by its nature is intended to survive termination.
7.4 Suspension or restriction of Services
We may suspend provision of any or all Services to you or place limits or restrictions on any of the Services that we provide to you, in our discretion at any time, either in advance by notice to you or with immediate effect in which case we will endeavour to notify you promptly afterwards.
We may amend this Agreement in any way at any time (including where we add new functionality to our Services or there is a change in the applicable law). We will give notice by publishing a notice of the change on our website, and may also email the notice to you. The notice will state when the amendment takes effect.
We warrant that if the amendment involves a change to this Agreement that is both material and likely to be adverse to you then we will send the notice to you by email and the amendment will not take effect earlier than 30 days after the date on which we send the notice.
Any notice or other written communication given under or in connection with this Agreement by either you or us to the other must be sent by ordinary prepaid mail or email to the corresponding address below, unless either party notifies the other of a change of the relevant address.
Notices by us to you will be sent as set out in the Registration.
Notices by you to us by mail should be addressed to:
Bluechain Pty Ltd
Level 1, 313 Burwood Road
Hawthorn, Victoria 3122
Notices by you to us by email should be addressed to [email protected]
Each party must ensure that at all times the email address applicable to it under this clause is current, and endeavour to ensure it is operational.
An email will be taken to have been served at the time of sending, unless within 24 hours of it being sent the sender receives a manual or automated response indicating that it was not delivered successfully.
10.1 Applicable law
This Agreement is to be construed according to,and is governed by the laws of Victoria, Australia. You and we submit to the non-exclusive jurisdiction of the courts in and of Victoria in relation to any dispute arising under this Agreement.
10.2 Assignment and subcontracting
You may not transfer or assign any of your rights or obligations under this Agreement to any other person. We may transfer or assign this Agreement, or our rights and obligations under it, to any person but will notify you if we do so. We may subcontract our obligations under this Agreement.
10.3 Entire agreement
This Agreement (and the Licence Agreement) constitutes the entire agreement between you and us in relation to its subject matter. Any prior arrangements, agreements, representations or undertakings are superseded and, except as expressly provided, each party warrants that it has not relied on any arrangement, agreement, representation or understanding which is not expressly set out in this Agreement (or Licence Agreement) or incorporated by reference.
In this Agreement:
- Words importing any gender include the other genders.
- Headings will be ignored in construing this document.
- Use of inclusive terms such as “includes” or “including” must be read as “includes, without limitation” or “including, without limitation”.
- Words importing the singular include the plural and vice versa.
- References to persons include corporations.
- References to writing include any mode of representing or reproducing words in tangible or visible form, and include email transmissions.