DEFT Auction Pay Agency Agreement

Introduction

If your client (the property vendor) has agreed to accept payment of the deposit by electronic funds transfer, DEFT Auction Pay allows the Payer (i.e. the buyer) to pay the deposit by submitting a Direct Debit request which enables us to draw funds from their bank account and into your trust account.

DEFT is owned and operated by Macquarie Bank. When we provide DEFT, we act as a payment facilitator and sit between the Agent (you) and the Payer (the buyer making payment of the property deposit). DEFT enables you to receive one-off Direct Debit payments from the Payer’s bank account directly into your trust account. DEFT is offered in connection with the deposit account(s) that you hold with Macquarie.

For further details about the operation of your bank account(s) and other information about Macquarie (including our complaint handling processes), please read the relevant terms and conditions associated with your bank account(s).

Important information

You are responsible for any fraudulent or unauthorised transactions. For example, if the Payer uses bank account details of a third party (who did not authorise the transaction) and the deposit has been prematurely released to the vendor, then you are liable for accounting to that third party for the amount of the payment.

In order to reduce the risk of fraud and potential cost to you, we recommend you:

  • Retain the deposit in your trust account for the entire exchange period, or (at the least) retain for a week after receiving the payment into your trust account – this will preserve the funds if the Direct Debit transaction is dishonoured and won’t leave you short
  • Verify that the Payer is the same person(s) who is listed as the buyer on the property contract, or sufficiently satisfy yourself of the connection between the bank account holder and the buyer of the property (and the associated fraud risk)
  • Identify the Payer and your client, and keep records of this

In addition, there may be consequences for either yourself, your client or the buyer under the property contract or at law if payments are recalled/dishonoured or delayed – you should satisfy yourself of the legal ramifications associated with this (e.g. your client may be entitled to terminate the contract, or impose additional costs – and parties may seek to involve you or hold you responsible).

1. Agreement and acceptance

1.1 These Terms and Conditions apply to the provision by Macquarie to the Agent of the DEFT Auction Pay payment facility (referred to as “DEFT” or “Facility”), which enables Payers to make payments directly into your bank account(s) held with us.

1.2 Subject to section 16, these Terms and Conditions apply from the date that Macquarie receives the signed acceptance of this Agency Agreement from the Agent and will remain in force thereafter, while the Agent utilises DEFT.

2. Definitions

In these Terms and Conditions, the following words have the following meanings:

Agent/you/your means you, the client of Macquarie who will receive payments from Payers. You must already be a client of Macquarie and have a Macquarie Business Banking bank account in order to use DEFT.

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

Code means any industry codes to which we have subscribed (including the Banking Code of Practice). 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.

Direct Debit has the meaning given to the term “Direct Debit Request” (DDR) in the BECS Procedures available at auspaynet.com.au/resources/direct-entry.

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 to you or us.

Full Recourse means the right to recover payment from the Agent for a Transaction as set out in these Terms and Conditions and to the extent permitted by any Law or Code.

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 bank account via DEFT, in payment of their respective deposits on property contracts.

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

3. Relationship of parties

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 the Facility.

3.2  You acknowledge that nothing in these Terms and Conditions 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.

4. Specific Auction Pay Obligations

4.1 Before making DEFT available for prospective purchasers as a payment option at auction, you must:

  1. ensure you have a portable device from which you can access DEFT, and that your portable device can connect to a secure internet connection;
  2. examine DEFT for any technical errors that may affect its use by prospective purchasers; and
  3. ensure that the vendor has agreed to payment of the deposit by DEFT 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 at auction that they can elect to pay their property deposit using DEFT.

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

  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 should verify the identity of each Payer. The account holder should match the name of the purchaser on the property contract (or you should be sufficiently satisfied of the connection if different).

4.5 DEFT can be used for a joint bank account where any of the account holders can authorise payment under the terms of the nominated bank account. A joint account which requires all account holders to authorise payment must not be accepted.

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 payment.

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

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

5. Payment requirements and liabilities

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

5.2 Payment of any amount tendered by a Payer may be accepted by us pursuant to these Terms and Conditions.

5.3 All Transactions must be made by Direct Debit from a compatible bank account. You must arrange for each Payer to provide an appropriate authority in our favour to debit the Payer’s bank account on your behalf (i.e. the DEFT Auction Pay Direct Debit Authority and Payer Terms of Use).

5.4 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 fraudulent or Dishonoured Transactions.

5.5 In the event that we are unable to perform the agency functions for any reason beyond our reasonable control (including force majeure under section 12), we will advise you in writing of such inability as soon as reasonably practicable.

5.6 Should you owe an amount back to the Payer (e.g. a deposit refund), in order to reduce the risk of fraud and your potential liability for this, you should notify us of the details of the Transaction for a refund to be made back to the same account from which the payment was originally made. Do not process any refund directly.

6. Dishonoured payments

6.1 You acknowledge that payments made through DEFT 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 recalled and Dishonoured during this period (“Automatic Dishonours”) – for example, because the Payer did not have sufficient funds in their bank account. This is distinct from manual Dishonours or “disputed transactions”, which can arise weeks or months after the initial Transaction and are subject to consultation and investigation – see section 7.

6.3 As Automatic Dishonours arise without notice, you should retain the funds in your account until they are cleared (particularly if your destination account is a trust account). For fraud mitigation purposes, we recommend you retain the funds in your account for the entire period of exchange.

6.4 You authorise us to debit the bank account linked to your DEFT for the purpose of processing Dishonoured payments, even if that account is a trust account. If sufficient funds are not available in this account, we may set off against other Macquarie accounts you may have in accordance with the relevant terms and conditions that apply to your bank accounts.

6.5 You must ensure that sufficient funds are maintained in your bank accounts to cover any shortfall caused by such Dishonoured payments. To the extent permitted by any Law or Code, you indemnify us against any loss caused by these Dishonoured payments.

7. Disputed transactions

7.1 A Transaction is a “Disputed Transaction” if a Payer notifies you or us of a dispute, complaint or query concerning that Transaction.

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, we will have Full Recourse against you for 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 of the details of the Transaction for a refund to be made. Do not process any refund directly.

7.5 We reserve the right to debit the bank account linked to your DEFT facility for amounts relating to the Disputed Transaction. If sufficient funds are not available in this account, we may set off against other Macquarie accounts you have in accordance with the relevant terms and conditions that apply to your bank accounts.

7.6 You must ensure that sufficient funds are maintained in your bank accounts to cover any shortfall caused by any Disputed Transactions. To the extent permitted by any Law or Code, you indemnify us against any loss caused by these Disputed Transactions.

8. Fees and Charges

8.1  You must pay the relevant fee or charge for each Transaction performed via DEFT 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 8.5). The maximum amount for Direct Debit Transactions performed via DEFT Auction Pay is $2.00 per Transaction.

8.2 The Indicative Proposal sets out whether or not 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 Facility or its operation, you must pay us an amount equal to that charge.

8.5 Acting reasonably, we may vary or introduce any fee or charge if we provide you notice in accordance with section 8.6 at least thirty (30) days before the day that the new fee or charge is intended to take effect.

8.6 You agree that we can give notice of a variation or introduction of a fee or charge in writing, electronically, by press advertisement or in any other way permitted by law.

Information about fees and charges that apply to the use of DEFT is available by contacting us.

9. Advertising

9.1  Neither party will use the name or logo of the other in any advertising material without the prior written consent of that other party.

9.2 Any advertising in relation to DEFT must not be used without our prior written consent.

9.3 During the provision of DEFT you may, subject to such conditions as we may reasonably impose, include accurate factual references to the existence of DEFT in your advertising material and any necessary documentation.

10. Limitation of liability

10.1 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:
    1.  any arrangement or transaction which is conducted or processed by us on your behalf and as instructed by you,
    2. any 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 for any failed Transactions.

11. Confidentiality

11.1 Subject to section 11.2 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.

11.2 The Agent acknowledges that Macquarie may conduct data aggregation and analysis, based on the information we have collected from your use of DEFT. We may package such information (on a de-identified basis) and use it for our own purposes or sell it to interested parties.

11.3 Confidentiality of charges and prices will be maintained and the Agent may not disclose negotiated charges or prices to a third party without the approval of Macquarie.

11.4 Notwithstanding the terms of sections 10.1, 10.2 and 10.3, such information may be disclosed if required by any Law, court order, tribunal or regulatory body.

12. Force Majeure

Neither party will be liable to the other, nor be in default of these Terms and Conditions, for failure to observe or perform any provision of these Terms and Conditions 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 these Terms and Conditions and the reasons for this.

13. Suspension and Termination

13.1 From time to time, we may need to suspend or cancel your use of DEFT if such suspension or cancellation is reasonably necessary to protect you, us or our other customers. If we do so, where reasonable, we will attempt to notify you as soon as possible afterwards.

13.2 The circumstances in which we may suspend or cancel your use of DEFT (including payment options) include:

  1.  you breach any of your obligations under these Terms and Conditions in a manner that we reasonably consider involves a material risk to you or us,
  2. we reasonably suspect criminal or fraudulent activity has occurred on your Facility,
  3. 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
  4. we are entitled to under, or required to by, Law or a court order.

13.3 Either party may terminate the supply or use of DEFT 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).

13.4 Termination of the DEFT service will not relieve either party of its duty to fulfil its obligations under these Terms and Conditions in respect of any Transaction occurring prior to the termination date.

13.5 In the event of the termination of the DEFT service, the Agent will not be entitled to any refund of fees and charges paid to Macquarie under these Terms and Conditions.

13.6 Any payments received by Macquarie after the termination of the DEFT service may, in Macquarie’s reasonable discretion, be Dishonoured or returned to the Payer.

14. Notices

14.1 Subject to clause 16.3 and the requirements of any Law or Code, notices and communications regarding your use of DEFT will be provided via email.

14.2 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.

15. Severance

All provisions of these Terms and Conditions are severable. No provision will be affected by the invalidity of any other provision except to the extent that such invalidity also renders such other provision invalid. In the event of the invalidity of any provision, these Terms and Conditions will be interpreted and enforced as if such invalid provision were not contained in these Terms and Conditions.

16. Variation

16.1 Acting reasonably, we may change these Terms and Conditions at any time on at least 30 days’ notice:

  1. if we think the change should be made to meet our legal obligations, to reflect any judgment of a court or tribunal or to reflect any guidance or views of any regulator or external dispute resolution service of which we are a member;
  2. as a result of any change or anticipated change in circumstances relating to DEFT including, for example (and without limitation), changes to our operations, systems or procedures, changes in technology, changes in any relevant law, code or guidance, changes in market or best practice, changes to the risks, costs, features or benefits of DEFT, or changes in our structure or financial position;
  3. if we think the change should be made for reasons of security, to streamline administration, to correct errors, inaccuracies or ambiguities, or because it would be impractical for us to continue without the change; or
  4. to make the Terms and Conditions clearer or simpler.

16.2 Your continued use of the Facility after any such change constitutes your acceptance of the revised Terms and Conditions. If any law regulates that change, we will only make the change to the extent permitted by, and subject to, the requirements of that law.

16.3 You agree that we can give notice of variations to these Terms and Conditions, any material change to, or any significant event that affects any of the matters specified in these Terms and Conditions in writing, electronically, by press advertisement or in any other way permitted by law.

16.4 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.

17. Governing law

17.1 These Terms and Conditions are 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 these Terms and Conditions.

18. Privacy

18.1 Macquarie acknowledges its obligations under the Privacy Act 1988 (Cth) in relation to personal information provided to it.

18.2 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.

18.3 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.

19. Assignment

19.1 Macquarie may, upon prior reasonable notice, assign or otherwise deal with its rights under these Terms and Conditions without the Agent's consent for legitimate business purposes including business reconstruction, amalgamation or sale.

19.2 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 these Terms and Conditions.

19.3 The liabilities and obligations contained in these Terms and Conditions may not be assigned by the Agent without Macquarie's prior written consent (such consent not to be unreasonably withheld).

20. Banking Code of Practice

This is a banking service to which the Banking Code of Practice (‘BCOP’) applies. The BCOP is an industry code which sets standards of good banking conduct for banks, their staff and their representatives. The BCOP will apply to this contract if you are an individual or a small business (as defined in the BCOP).

21. Complaints

How to make a complaint

To contact us please visit macquarie.com.au/feedback-and-complaints.html

If you have a privacy related question or complaint, please email privacy@macquarie.com and mark communications to the attention of our Privacy Officer or call us on 1800 806 310.
 

The Customer Advocate

The Macquarie Customer Advocate’s role is to:

  • listen to our customers and provide a customer- centric voice when making recommendations to improve customer experience
  • minimise the risk of future problems by reviewing key customer themes
  • work with Macquarie complaint teams to promote fair and reasonable customer outcomes

The Macquarie Customer Advocate is separate to Macquarie’s operating, risk and support groups including its internal dispute resolution teams.

The Macquarie Customer Advocate can be contacted at:

The Customer Advocate
Macquarie Group Limited GPO Box 4294
Sydney NSW 1164
Email: customeradvocate@macquarie.com
 

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

If you have raised your concerns with us and you are not satisfied with the outcome proposed

or you believe that we have not resolved your complaint fairly, then you can request to have your complaint reviewed free of charge by the Australian Financial Complaints Authority (AFCA).

AFCA is an independent external complaints handling body approved for this purpose by ASIC. This service is available to individuals and small businesses and is free of charge.

AFCA may be contacted at:

Australian Financial Complaints Authority
GPO Box 3, Melbourne VIC 3001
Telephone: 1800 931 678
Website:  www.afca.org.au

We are bound by whatever AFCA decides. However, if you do not agree with AFCA’s determination you are not bound by it and you can take the matter to court if you wish.