DEFT Auction Pay Agency Agreement

1.1 This Agreement applies to the provision of the DEFT Auction Pay payment facility by Macquarie to the Agent, which enables Payers to make payments directly into an Agent’s Real Estate Trust Account.

1.2 Subject to section 9.8, this Agreement is in force from the date that we receive confirmation of acceptance of this Agreement from you and will remain in force thereafter, while you continue to use DEFT Auction Pay. If we haven’t received your confirmation of acceptance, then you are deemed to accept this Agreement upon the processing of the first Transaction by a Payer using a DRN associated with your DEFT Auction Pay facility.

In this Agreement, the following words have the following meanings:

Agent/you/your means you, the client of Macquarie who will receive one or more DEFT Auction Pay payments from Payers. You must already be a client of Macquarie and have a Macquarie Real Estate Trust Account to use DEFT Auction Pay.

Authenticator means the Macquarie Authenticator application, which is available for download for free on either Google Play® or the Apple® App Store.

Agreement means this DEFT Auction Pay Agency Agreement between you and Macquarie.

Business Day means every weekday except for Australian national public holidays.

Code means any industry codes to which we have subscribed.

Direct Debit has the meaning given to the term “Direct Debit Request” in the BECS Procedures available at auspaynet.com.au.

Digital Banking means any the online banking platform on which you can access your Real Estate Trust Account.

Dishonoured means the process where the Payer’s financial institution, either on its own or on instruction from the Payer, requests that a charge or direct entry (electronic) Transaction be reversed back to the Payer’s financial institution.

Disputed Transaction means a payment or transaction concerning a dispute, complaint or query that has been notified by a Payer or their financial institution to you or us.

DRN stands for “DEFT Reference Number”, a unique number issued by you to individual Payers in order for the Payer to make payments to you via DEFT. The DRN assists you to identify Payers, payments and reconcile your accounts.

Law means:

• Common law
• Principles of equity
• Laws made by parliament (Laws made by parliament include State, Territory, and Commonwealth Laws and regulations and other instruments under them, and consolidations, amendments, re-enactments or replacement of any of them).

Macquarie/us/we means Macquarie Bank Limited ABN 46 008 583 542.

Payer means any person(s) who uses a valid DRN to make payments to your Real Estate Trust Account via DEFT, in payment of their respective deposits on property contracts.

Real Estate Trust Account means any bank account held with Macquarie for the purposes of holding trust money received or held in connection with the Agent’s real estate business.

Transaction means each utilisation of DEFT by a Payer (i.e. each payment).

3.1  Macquarie will:

1. act as agent for the Agent for the purpose of the receipt of monies payable to the Agent by Payers, which may include monies owing to the Agent in its own right and in its capacity as agent for any third party (i.e. property vendors); and
2. otherwise act as a principal in respect of our obligations as a service provider in providing DEFT Auction Pay.

3.2  You acknowledge that nothing in this Agreement is intended to, nor will it, create:

1. a joint venture or partnership between the parties; or
2. any contractual or binding relationship between Macquarie and a Payer or any other person making a payment to the Agent through DEFT Auction Pay.

4.1 Before making DEFT Auction Pay available for prospective purchasers as a deposit payment option at auction or for a private treaty sale, you must ensure:

1. you have a device from which you can access DEFT Auction Pay and that your device can connect to a secure internet connection; and
2. that the vendor has agreed to payment of the deposit by DEFT Auction Pay and understands that funds can take up to three (3) Business Days to clear and be received.

4.2 If section 4.1 is satisfied, you may notify potential purchasers that they can elect to pay their property deposit using DEFT Auction Pay.

4.3 You must not offer DEFT Auction Pay as the only method of payment for a property deposit, and you agree to advise all potential purchasers that their use of DEFT Auction Pay:

1. is at their own free will; and
2. that there are other payment options available to them to pay for their property deposit.

4.4 You must verify the identity of each Payer. The account holder of the Payer’s nominated bank account should match the name of the purchaser on the property contract, or you should be sufficiently satisfied of the connection if it is different.

4.5 DEFT Auction Pay can be used for a joint bank account where any one of the account holders can authorise the payment under the terms of the nominated bank account. You must not accept a joint bank account which requires two or more account holders to authorise the payment.

4.6 You are responsible for ensuring the accuracy of the property details, the deposit amount and all other information required to facilitate a successful DEFT Auction Pay payment.

4.7 You must ensure that the Payer is provided with sufficient opportunity to read the DEFT Auction Pay Direct Debit Authority and Payer Terms of Use, and that they have willingly agreed to those terms prior to making payment using DEFT Auction Pay.

4.8 On each occasion that you offer DEFT Auction Pay as a payment option, you represent and warrant that you have successfully met each requirement described in this section 4.

5.1 We will not accept payment from a Payer through DEFT Auction Pay unless the person making payment produces a valid DRN.

5.2 All Transactions must be made by Direct Debit from a compatible bank account. You must arrange for each Payer to agree to the DEFT Auction Pay Direct Debit Authority and Payer Terms of Use which provides an appropriate authority in our favour to debit their nominated bank account on your behalf.

5.3 You are responsible for taking reasonable steps to verify that the Payer submitting a direct debit request is the bank account holder (or is duly authorised to do so). To the extent permitted by any Law or Code, and provided we have acted properly and without fault of negligence on our part, we are not responsible for any unauthorised amounts debited and you indemnify us against any Disputed or Dishonoured Transactions.

5.4 In the event that we are unable to perform the agency functions for any reason beyond our reasonable control (including force majeure under section 9.4), we will advise you of such inability as soon as reasonably practicable.

5.5 To reduce the risk of fraud and your potential liability for Disputed Transactions, in the event that a refund of a Transaction is required you must notify us so that we can refund the Transaction back to the same account from which the payment was originally made. Do not process any refund directly.

6.1 You acknowledge that Transactions made through DEFT Auction Pay may be subsequently Dishonoured at any time after a payment is made.

6.2 Payments can take up to three (3) Business Days to be received in clear funds, and can be automatically Dishonoured during this period (“Automatic Dishonour”). For example, an Automatic Dishonour can occur where the Payer did not have sufficient funds in their nominated bank account. This is distinct from manual Dishonours instigated as a result of a Disputed Transaction, which can arise weeks or months after the initial Transaction.

6.3 As Automatic Dishonours arise without notice, you should retain the funds in your Real Estate Trust Account until they are cleared. For fraud mitigation purposes, we recommend you retain the funds in your Real Estate Trust Account for at least 3 Business Days, or where possible for the entire settlement period.

6.4 You authorise us to debit your Real Estate Trust Account where permitted by law for the purpose of processing Dishonoured Transactions. If sufficient funds are not available or law does not permit us to debit your Real Estate Trust Account, you authorise us to debit any other Macquarie bank account you may have for the purpose of processing the Dishonoured Transaction.

6.5 You must ensure that sufficient funds are maintained in your Real Estate Trust Account to cover any shortfall caused by such Dishonoured Transactions. To the extent permitted by any Law or Code, you indemnify us against any loss caused by Dishonoured Transactions.

7.1. You are responsible for any Disputed Transactions that are determined against you. A Disputed Transaction could occur even after your DEFT Auction Pay facility or Real Estate Trust Account are closed.

7.2 If we notify you of a Disputed Transaction, you must provide us with a written response no later than five (5) Business Days after receipt of such notification. Your response must be substantive and contain a resolution or explanation of the Disputed Transaction, which will enable us to resolve the Disputed Transaction. If such a response is not received by us within five (5) Business Days, you must pay us the amount of the Disputed Transaction. You must also provide us with any other information relating to the Disputed Transaction that we reasonably request.

7.3 If a Payer notifies you of a Disputed Transaction, you will provide to the Payer a written response no later than five (5) Business Days after receipt of such notification. Your response to the Payer must be a substantive response containing a resolution or explanation of the Disputed Transaction.

7.4 If a Payer notifies you of a Disputed Transaction and it is determined that the Payer be refunded, you should notify us for a refund to be made. Do not process any refund directly.

7.5 You authorise us to debit your Real Estate Trust Account where permitted by law for the purposes of processing a Disputed Transaction determined against you. If sufficient funds are not available or law does not permit us to debit your Real Estate Trust Account, you authorise us to debit any other Macquarie bank account you may have for the purpose of processing the Disputed Transaction.

8.1 You must pay the relevant fee or charge for each Transaction performed via DEFT Auction Pay and any other fees as set out in the ‘Indicative Proposal’ which was provided to you before receiving this Agreement (or otherwise as notified to you from time to time in accordance with section 9.8). The maximum fee for Direct Debit Transactions performed via DEFT Auction Pay is $2.00 per Transaction.

8.2 The Indicative Proposal sets out whether any fee or surcharge will be passed on to Payers. If you subsequently want to change this position, you may do so by giving us no less than 30 days’ written notice.

8.3 You authorise and instruct us to collect any transaction fees and surcharges payable by you in connection with a Transaction and which will be passed on to Payers directly from the relevant Payer at the time of the Transaction.

8.4 If we incur any government tax, duty or other charge imposed by Law in respect of your DEFT Auction Pay facility or its operation, you must pay us an amount equal to that charge.

9.1. Advertising

1. Neither party will use the name or logo of the other in any advertising material without the prior written consent of that other party.
2. Any advertising in relation to DEFT Auction Pay must not be used without our prior written consent.
3. During the provision of DEFT Auction Pay you may, subject to such conditions as we may reasonably impose, include accurate factual references to the existence of DEFT Auction Pay in your advertising material and any necessary documentation.

9.2 Limitation of liability

To the extent permitted by any Law or Code, and provided we have acted properly and without fraud or negligence:

1. we are not responsible for any loss or damage that you may incur due to any:
   1. arrangement or transaction which is conducted or processed by us on your behalf and as instructed by you,
   2. delay or failure in processing a transaction on your behalf, or
   3. unauthorised Transactions, Dishonoured Transactions or Disputed Transactions, and
2. in respect of any implied statutory condition or warranty which can be limited, our liability is limited to resupply of DEFT Auction Pay for any failed Transactions.

9.3. Confidentiality

1. Subject to paragraph (b) below, the parties will treat as confidential and may not disclose any information which comes into their possession pursuant to or as a result of the provision of DEFT Auction Pay.
2. The Agent acknowledges that Macquarie may conduct data aggregation and analysis, based on the information we have collected from your use of DEFT Auction Pay. We may package such information (on a de-identified basis) and use it for our own purposes or sell it to interested parties.
3. Confidentiality of charges and prices will be maintained and the Agent must not disclose negotiated charges or prices to a third party without the approval of Macquarie.
4. Notwithstanding paragraphs (a) to (c) above, such information may be disclosed if required by any Law, court order, tribunal or regulatory body.

9.4. Force Majeure

Neither party will be liable to the other, nor be in default of this Agreement, for failure to observe or perform any provision of this Agreement for any reason or cause which could not with reasonable diligence be controlled or prevented by the party in question, provided that the party relying on this section must give notice to the other party of its inability to observe or perform the provisions of this Agreement and the reasons for this.

9.5. Suspension and Termination

1. From time to time, we may need to suspend or cancel your use of DEFT Auction Pay. If we do so, where reasonable, we will attempt to notify you as soon as possible afterwards.
2. The circumstances in which we may suspend or cancel your use of DEFT Auction Pay (including payment options) include:
   1. we consider it is reasonably necessary to protect you, us, other customers or other users of DEFT Auction Pay, including where we consider you pose an unsatisfactory credit risk to us in the event of a potential Dishonoured or Disputed Transaction,
   2. you breach any of your obligations under this Agreement in a manner that we reasonably consider involves a material risk to you or us,
   3. we reasonably suspect criminal or fraudulent activity has occurred in connection with your DEFT Auction Pay facility,
   4. we reasonably believe it necessary in order to prevent the occurrence of fraud or unlawful transactions (but we are under no obligation to do so), or
   5. we are entitled to under, or required to by, Law or a court order.
3. Either party may terminate this Agreement and the supply or use of DEFT Auction Pay without cause and without the need to give any reason or explanation, by giving the other party written notice specifying a date for the termination (being not less than 30 days after the date of such notice).
4. Termination of the DEFT Auction Pay facility will not relieve either party of its duty to fulfil its obligations under this Agreement in respect of any Transaction occurring prior to the termination date.
5. In the event of the termination of the DEFT Auction Pay facility, the Agent will not be entitled to any refund of fees and charges paid to Macquarie under this Agreement.
6. Any payments received by Macquarie after the termination of the DEFT Auction Pay facility may, in Macquarie’s reasonable discretion, be Dishonoured or returned to the Payer.

9.6. Communication and notices

1. We may communicate with you electronically through:
   1. notifications in Digital Banking or Authenticator;
   2. email;
   3. SMS; or
   4. messaging on Macquarie's website.
2. Notices and other communications will be deemed to be given, served or made:
   1. (in the case of delivery by hand) on delivery;
   2. (in the case of prepaid post) on the second Business Day after the date of posting; and
   3. (in the case of email) on the day of sending (if before 5pm), or on the following Business Day (if after 5pm or if sent on a non-Business Day), provided no email delivery failure notification is received by the sender.

9.7. Severance

If any provision of this agreement is unenforceable, illegal or void, it is severed and all other provisions remain valid.

9.8. Variation

1. To the extent permitted by Law, we may vary the terms of this Agreement at any time:
   1. in writing, by press advertisement or electronically; and
   2. as set out in the table below:

1. Your continued use of the DEFT Auction Pay facility after any such change constitutes your acceptance of the Agreement as varied.
2. If requested, you must, on our behalf, give notice to Payers of any changes to terms and conditions or fees applying to or affecting Payers, in the manner and by the time specified by us.

9.9. Governing law

This Agreement is governed by and must be construed by the laws of New South Wales. The parties submit to the non-exclusive jurisdiction of the courts of New South Wales and the Commonwealth of Australia in respect of all matters or things arising out of This Agreement.

9.10. Privacy

1. Macquarie acknowledges its obligations under the Privacy Act 1988 (Cth) in relation to personal information provided to it.
2. The Agent warrants to Macquarie that it has obtained each Payer’s consent prior to providing Macquarie with any personal information relating to the Payer. To the extent permitted by any Law or Code, the Agent indemnifies Macquarie against any action or claim made by a Payer or any other person or authority which relates to the provision or disclosure of this information.
3. The Agent acknowledges that Macquarie may contact any Payers in respect of direct marketing or other purposes, where those Payers have independently provided their consent for Macquarie to do so.

9.11. Assignment

1. Macquarie may, upon prior reasonable notice, assign or otherwise deal with its rights under this Agreement without the Agent's consent for legitimate business purposes including business reconstruction, amalgamation or sale.
2. Macquarie may disclose any information or documents it considers reasonably necessary to help it exercise this right, provided that Macquarie will ensure that the recipient of such information and documentation observes the same duties of confidence and privacy which it has to the Agent under this Agreement.
3. The liabilities and obligations contained in this Agreement may not be assigned by the Agent without Macquarie's prior written consent (such consent not to be unreasonably withheld).

9.12. Industry codes

If you are an individual or a small business as defined in the Banking Code of Practice, that code will apply.  We will also comply with the ePayments Code.

9.13. Waiver

A provision or a right under this Agreement may not be waived except in writing signed by the party granting the waiver.

9.14. Complaints

How to make a complaint

Please contact us if you have a concern or complaint. To find out how to do so please visit macquarie.com.au/feedback-and-complaints.html

Macquarie Customer Advocate

Macquarie has a Customer Advocate to help facilitate fair customer outcomes. For more information and their contact details please visit www.macquarie.com.au/feedback-and-complaints/customer-advocate.

What to do if you feel your complaint has not been resolved

The Australian Financial Complaints Authority provides free independent complaints resolution. If you are not satisfied with our response to your complaint, you can contact AFCA at:

Australian Financial Complaints Authority
GPO Box 3
Melbourne VIC 3001
Telephone: 1800 931 678 (free call)
Email: info@afca.org.au
www.afca.org.au