User agreement

1. Definitions

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.

“Bluechain Consumer” means a Consumer who has registered for, and has been authorised to use, the Bluechain Services in order to facilitate payment for goods or services purchased by the Consumer.

“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.

“Non-Bluechain Merchant” means a Merchant that is not a Bluechain Merchant (or is a Bluechain Merchant but does not use the App in relation to the relevant payment, being a payment to the Bluechain Merchant).

“Non-Bluechain Merchant Account Holder” means the holder of an Account into which a Bluechain Consumer instructs via the App that a payment be made in connection with a purchase of goods or services by the Consumer from a Non-Bluechain Merchant, whether or not the holder of the Account is the relevant Non-Bluechain Merchant.

“Payee Account Holder” means the holder of an Account into which a User (i.e. payer) instructs via the App that a payment be made, where the holder (i.e. payee) is not a User (or the holder is a User but does not use the App in connection with the payment), except in the case of a payment in connection with a purchase of goods or services by the User from a Non-Bluechain Merchant (in which case the definition of Non-Bluechain Merchant Account Holder applies).

“Prohibited Payment” means any payment described in the “Prohibited Payments” section of the “Your key obligations” clause below.

“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 Bluechain 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 document

This document 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 End User Licence Agreement (regarding the App) is separate from the 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 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 person 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, Non-Bluechain Merchant Account Holder, or Payee Account Holder;
  • 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

General

During the term of the 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 (e.g. an employee of a Bluechain Merchant);
  • not use or attempt to use the App or our Services for any purpose other than the facilitation of payments by Users to other Users, Merchant Account Holders or Payee Account Holders through use of our Services;
  • not use or attempt to use the App or our Services in order to make any Prohibited Payment;
  • 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;
  • comply with all applicable terms of service, rules and policies applying to any Merchant or Payee Account Holder to whom you request we facilitate a payment to; and
  • in relation to any payment to a Non-Bluechain Merchant Account Holder or Payee Account Holder, ensure that the numbers and other details of the relevant Account (and bank and branch) are the correct details for the intended payee.

Eligibility

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 each country in which you operate; or
  • a government body; or
  • a partnership of any of the above.

You warrant that all information that you provide to us (including in any Registration by you or any changes you make to the details you have provided to us) are and remain current, true and not misleading or deceptive.

Security

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 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.

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 specified account to which payment is to be made.

You grant us a non-exclusive, royalty-free, irrevocable perpetual licence (which we may sublicense) to use and otherwise exploit, to the same extent as you could, any Content that you submit or provide to us as part of the use of, or in connection with, the Services or the App. Please see our Privacy Policy in relation to how we use your data and information about you.

Fees

Unless specified otherwise, you must pay us the applicable Fees (including any Convenience Fee):

  • where we facilitate a payment by you as part of the Service, you authorise us to add any applicable Fee to the amount deducted from the relevant Account from which the payment is made; or
  • where we facilitate a payment to you as part of the Services you authorise us to deduct any applicable Fee from the payment amount, or from the relevant Account to which the payment is credited.

Fees not listed in the App can be found here.

Prohibited Payments

The payments that are Prohibited Payments are:

  • payments other than bona fide payments for goods or services supplied to you;
  • payments to any individual or entity related to you, including (where you are an individual) family members or entities under the ultimate ownership or control of family members or (where you are an entity) other entities subject to the same underlying ultimate ownership or control as you; and
  • payments in connection with the following Prohibited Activities where the relevant Payment Provider is American Express (note that the “Category” description is only a heading and does not affect the definition):
Category Definition of Prohibited Activity
Bail bonds Fees associated with the service provided by a bail bondsperson.
Cash Cash disbursement, provision of cash advances or repayment of cash advances, including payday loans, pawn loans, or payday advances
Cheque cashing and cheque guarantee Transact cheques for cash using payment facilitated by Bluechain as a cheque guarantee
Child pornography Any written or visual depiction of a minor engaged in obscene or sexually explicit conduct
Condo (real estate) down payments Down payments for purchase of an apartment or condominium
Credit restoration services A service that promises to remove negative factors from a consumer’s credit report by disputing it with the credit bureau and correcting errors like outdated or incorrect claims
Debt collection Collection agencies, factoring companies, liquidators, bailiffs, and bankruptcy lawyers
Digital file hosting (cyberlockers) Online data hosting services that provide remote storage space within a secure storage architecture; They can be accessed globally over the Internet;  cyberlockers can also be called online storage or cloud storage
Door-to-door sales Unsolicited vendors with immediate payment expected
Escort services and non-licensed massage parlors Payment of potentially sexual related services
Foreign exchange bureaus Any establishment that allows the purchase of foreign exchange currency
Gambling Casino gaming chips, off-track betting and wagers at race tracks, gambling services, internet gambling sites
Internet adult digital content Internet digital adult content sites
Investment on futures maturity/value of goods Investment made on futures maturity of goods and/or services with an intention of gaining return on investment (e.g. stock market, wine future, horse breeding, timber investment, precious metals)
Leasing merchants A merchant that conveys land, property, or other real estate to another for a specified time in return for regular periodic payment
Licensed insolvency practitioners Fees associated with the service provided by a licensed insolvency practitioner.
Lottery sales Sale of lottery tickets
Marijuana-related businesses Any individual or entity that manufactures, processes, distributes, or dispenses marijuana, or byproducts or derivatives of marijuana, whether for recreational or medicinal purposes, and whether or not subject to a governmental licensing regime.
Mortgage payments Payment which includes principal and interest paid by borrower to lender of a home loan
Multi-level marketing and pyramid selling Multi-level marketing system which uses one or more of the following practices which may be considered deceptive:

  • participants pay money for the right to receive compensation for recruiting new participants;
  • a participant is required to buy a specific quantity of products, other than at cost price for the purpose of advertising, before the participant is allowed to join the plan or advance within the plan;
  • participants are knowingly sold commercially unreasonable quantities of the product or products (this practice is called inventory loading);
  • participants are not allowed to return products on reasonable commercial terms.
Outside agency collection fees Fees associated with the service provided by the outside collection agency.
Payday lenders Establishments that lend customers money at high interest rates on the agreement that the loan will be repaid when the borrower receives his or her next paycheck.
Payment aggregators Except to the extent the entity itself sells goods to which it has title.
Person-to-person wire transfers Establishments that charge a fee to wire transfer money from one individual to another (e.g. Western Union)
Pharmacies Online pharmacies selling prescription drugs or products
Political party donations Donations to political parties
Prostitution Providing sexual services in return for payment
Telecommunications Including wireless, cable, satellite, wire line, internet service providers
Telemarketing—travel related Merchants who telemarket travel related products or services or other travel arrangements
Tobacco and smokeless tobacco retailers Merchant who sells tobacco, smokeless tobacco, and e-cigarettes online.
Travel Including air travel, cruise line, car rental and lodging
Travel tour operators Travel tour operators without membership to a travel industry bonding agency, or who are not an authorized ticket agent (e.g. ARC/IATA/ABTA)
Unlawful sale of prescription drugs Online sale of prescription drugs to consumers by a pharmacy that is not licensed by the relevant pharmacy regulator in the state in which it is located
Unlawful sale of tobacco and smokeless tobacco Online sale of tobacco and smokeless tobacco products to consumers by a retailer that:

  • does not pay, or is not certified to pay, all applicable taxes; or
  • does not prevent sale of tobacco products to under-age consumers
Unregulated charities Merchant that does not have a tax exemption or local council registration number
Virtual currency Card acceptance to purchase virtual currency that can be exchanged for real currency (e.g. Bitcoin)

6. Warranties and liabilities

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 Merchant or payee or for anything provided by them and do not guarantee the delivery or quality of any goods 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 person’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.

Exclusion of other terms

We will provide the relevant Services to you with due care and skill. Otherwise, to the extent permitted by law, and except as expressly provided in the 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 the Agreement are excluded.

General limitation of liability

Without limiting exclusions stated in the Agreement, to the extent permitted by law, any liability of ours in connection with the Services, the App or the 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 resupply of the relevant Service or the payment of the cost of same.

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 the 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.

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 the Agreement directly in connection with the payment or circumstances giving rise to that liability.

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.

Indemnity

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 or liability or debt to any third party incurred by us as a result of any breach by you of the 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.

Without limiting the above, in connection with any Prohibited Payment made by you, or in your name, using our Services or the App, the above indemnity includes the obligation to reimburse us for:

  • any resulting liability or debt of ours to the relevant Payment Provider; and
  • if a related payment by you or on your behalf to us on behalf of a Non‑Bluechain Merchant Account Holder or Payee Account Holder is for any reason cancelled or reversed by the applicable Payment Provider, then the obligation to reimburse us for any corresponding payment made by us to the Non-Bluechain Merchant Account Holder or Payee Account Holder.

7. Termination and suspension

Termination without cause

Either you or we may at any time, without any reason, terminate the Agreement by giving the other at least 30 days prior written notice.

Termination for cause

Either you or we may terminate the Agreement with immediate effect by notice to the other if either the other party remains in unremedied breach of the 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.

Effect of termination

Termination of the Agreement will not affect the accrued rights of either party as at the date of termination. Clauses 1, 2, 3, 5 ,6, 7, 8, 9, 10, 11 and 12 will survive the termination of this document, and the applicable Facility Terms will survive the termination of the Agreement, as will any other provision of the Agreement that by its nature is intended to survive termination.

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.

8. Amendment

We may amend the Agreement (including any of the documents comprising it) 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 or notify you via the App. The notice will state when the amendment takes effect.

If the amendment will benefit you or is likely to have a neutral impact on you, then we may make the change immediately without notifying you.

Subject to the following, we warrant that if the amendment involves a change to the Agreement that is both material and likely to be adverse to you then the amendment will not take effect earlier than 30 days after the date on which we send the notice.

If the amendment is required by law or is necessary for security reasons to prevent fraud or for technical reasons, then we may make the amendment as soon as possible, and will attempt to give you three days prior notice of the amendment. However sometimes, due to the nature of the change, in our view it may not be possible or desirable to give three days prior notice, in which case we will give you as much notice (up to 3 days) as we determine to be practical.

9. Notices

Any notice or other written communication given under or in connection with the 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.  We may also send notices to you via the App.

Notices by us to you by prepaid mail or email will be addressed as set out in your Registration.

Notices by you to us by mail should be addressed to:

Bluechain Pty Ltd
Level 1, 313 Burwood Road
Hawthorn, Victoria 3122
Australia

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. Disputes

You may raise a dispute in relation to any payment after it is paid, however you will not have access to the disputed funds until the dispute is resolved.  For details, please refer to the Bluechain Disputes and Refund Policy.

11. Miscellaneous

Applicable law

The 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 the Agreement.

Assignment and subcontracting

You may not transfer or assign any of your rights or obligations under the Agreement to any other person. We may transfer or assign the 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 the Agreement.

Entire agreement

The 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 the Agreement (or Licence Agreement) or incorporated by reference.

11. Interpretation

In the 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.