BANO PTY LTD ACN 643 260 431
TERMS AND CONDITIONS
Bano Pty Ltd Terms and Conditions
1. DEFINITIONS AND INTERPRETATION
Whenever used in this Agreement, unless inconsistent with the subject matter or context, the following words shall have the following meanings:
Account means your Bano account which is a digital wallet which enables you to receive and make payments.
Account Opening Form means the form provided by Bano for completion by the you to request an Account.
ADI means an Authorised Deposit Taking Institution regulated by the Australian Prudential Regulation Authority.
Agreement means these Terms and Conditions together with all other documents which are referred to in these Terms and Conditions.
Bano means Bano Pty Ltd ACN 643 260 431.
Client, you or your means the Client named in the Account Opening Form, together with its:
- subsidiaries, affiliates, successors and/or assigns; and
- officers, directors, employees and agents.
Day means a day on which commercial banks are open for business in Sydney, New South Wales, Australia.
Force Majeure Event means events or causes including, but not limited to, the following: an act of God, unavoidable accident of navigation, war (whether declared or not), sabotage, riot, insurrection, civil commotion, national emergency (whether in fact or law), martial law, fire, flood, cyclone, earthquake, landslide, explosion, power or water shortage, failure of a transmission or communication network, epidemic, pandemic, quarantine, strike or other labour difficulty or expropriation, restriction, prohibition, law, regulation, decree or other legally enforceable order of a government agency, breakage or accident, change of International, State or Commonwealth law or regulation or any damage of Bano’s machinery or systems, unless occurring as a result of an act, omission, default or negligence of you or Bano.
General Advice is as defined in the Corporations Act 2001 (Cth), as varied from time to time.
Instruction has the meaning given in clause 9.2 of this Agreement.
Intellectual Property means the trademarks, designs, patents and copyrights of the parties to this Agreement.
Internet means the interconnected system of networks that connects computers around the world.
Law means the statutes, regulations and general law of Australia, as varied from time to time.
Monies has the meaning stated in clause 22.1 of this Agreement.
Notice has the meaning stated in clause 29.1 of this Agreement.
Obligations has the meaning stated in clause 22.3 of this Agreement.
Payment Contract Terms has the meaning stated in clause 10.1 of this Agreement.
Payment Transaction means a payment to be made from your Account including:
- payments to a bank account held in your name with an Australian ADI;
- payments to a third party’s bank account held with and Australian ADI; and
- payments to a third party’s account held with Bano.
Personal Advice is as defined in the Corporations Act 2001 (Cth), as varied from time to time.
Personal Information is as defined in the Privacy Act 1988 (Cth), as varied from time to time.
Platform means Bano’s online transaction system through which you can make and receive payments.
Product Disclosure Statement or PDS is as defined in the Corporations Act 2001 (Cth), as varied from time to time, and may be referred to in this agreement as PDS.
Registered Office means the registered office of Bano as notified to the Australian Securities and Investments Commission.
Representative is as defined in the Corporations Act 2001 (Cth), as varied from time to time.
Retail Client means a client of Bano who is not a Wholesale Client.
Senior Officer means the Chief Executive Officer, Managing Director or “officer” as defined in the Corporations Act 2001 (Cth), as varied from time to time, of Bano and/or you, and in the case of Bano includes an employee, director or consultant nominated by Bano as the Complaints Officer.
Transaction means any transaction pursuant to this Agreement and includes a Payment Transaction.
Website means the Bano website located at www.banofinancial.com.
Wholesale Client has the same meaning as in section 761G of the Corporations Act 2001 (Cth), as varied from time to time.
2. THIS AGREEMENT
- This agreement sets out the terms and conditions in respect of your Account and the related services that we provide to you.
- This Agreement includes:
- any other terms and conditions that may apply to the services that we provide to you;
- the Account Opening Form; and
- if you are not a Wholesale Client, it includes the PDS that may have been provided to you.
However, in the event of any inconsistency between this Agreement and other contracts or documents, exchanged and/or executed between you and Bano, the PDS, as it applies, shall prevail to the extent of the inconsistency, and with respect to any other inconsistency, this Agreement shall prevail.
- In the event of any inconsistency between the English language version of each of the documents described in clause 2.2 above and their translated equivalent in any other language, the English language version shall prevent, to the extent of any inconsistency.
3. OUR SERVICES AND TASKS
- Bano provides general advice and execution-only services. The final decision is always your own. Under no circumstances will Bano provide you with Personal Advice.
- If Bano provides you with General Advice then you acknowledge that the advice is general only and does not consider your personal objectives, circumstances or needs. You must consider your own personal objectives, circumstances or needs as well as the relevant PDS (if you are a Retail Client), before making a decision to use Bano’s services. General Advice is provided by Bano without charge.
- You should not use Bano’s services if you do not fully understand the risks associated with them.
- From time to time, Bano may appoint agents to assist it in providing its services under this Agreement.
4. CLIENT REPRESENTATIONS AND WARRANTIES
- You warrant that in the case of:
- an individual or more than one individual, you are of full age and capacity; and
- a firm or corporation, it is duly constituted and incorporated and possesses the requisite power to enter into this Agreement.
- You warrant that all Transactions entered into, and this Agreement, are and will constitute your legally binding and enforceable obligations.
- If you enter into this Agreement in your capacity as trustee of a trust, you make the
- the relevant trust instrument is valid and complies with all Laws which apply to you;
- you are properly appointed as the trustee of the trust;
- you have a right of indemnity from the trust assets in respect of this Agreement and the Transactions contemplated by it;
- you will comply with your duties as trustee of the trust;
- you will not do anything which may result in the loss of your right of indemnity from the trust assets;
- if you are replaced or joined as trustee, you will make sure the new trustee becomes bound to Bano’s satisfaction by this Agreement and any other agreement relating to a Transaction contemplated by this Agreement to which you are expressed to be a party, or by a document which is identical in effect;
- you will not resettle, set aside or distribute any of the assets of the trust without Bano’s written consent unless compelled to do so by the trust instrument;
- you will not amend or vary the trust instrument without Bano’s written consent; and
- if you are not the sole trustee of the trust it is a requirement that each and every trustee agrees in writing to be bound by the terms of this Agreement and by any Transactions entered into in connection with this Agreement.
- You represent and warrant to Bano that:
- your execution and delivery of this Agreement, use of our services and performance of all of your obligations contemplated under this Agreement, does not violate any law applicable to you;
- all information provided by you to Bano is true, correct and complete, and you will notify Bano promptly of any changes to such information;
- all information provided by you to Bano is true in all material respects as at the date of this Agreement or, if later, when the information is provided. Neither that information nor your conduct or the conduct of anyone acting on your behalf in relation to the Transactions contemplated by this Agreement, was or is misleading, by omission or otherwise;
- you shall make ongoing disclosure to Bano of any matters that may affect the operation of this Agreement;
- the funds received, transferred used and held by you are funds that you are entitled to use, transfer and hold, and are not derived from illegal sources;
- the information on the Website will not be used for unlawful or unauthorised purposes;
- you will not “deep-link” the Website, resell or permit access to the Website to others or copy any materials appearing on the Website for resale or for any other purpose without the prior written consent of Bano;
- You acknowledge that Bano:
- will provide the services contemplated by this Agreement to you in reliance on the representations and warranties made by you;
- provides general advice and execution-only services and the final decision to enter into a Transaction is always your own; and
- has no control over, and is not responsible for, the quality, safety, legality or delivery of any goods or services that you purchase from third parties or pay for from your Account.
5. USE OF PERSONAL INFORMATION
- Personal Information collected by Bano is treated as confidential and is protected by the Privacy Act (Cth) 1988, as varied from time to time. Bano will only collect Personal Information which is necessary to perform the services contemplated by this Agreement.
- Bano will use reasonable precautions to maintain the confidentiality of information it receives from you and material and/or data you provide, create, input or develop in connection with your use of the Bano services. Nonetheless, because such information, material and/or data may be provided through the Internet, you hereby acknowledge and agree that Bano cannot assure that such information, material and/or data will continue to be confidential.
- You accept the risk of a third party receiving confidential information concerning you
and specifically release and indemnify Bano from any claim arising out of a third party
intercepting, accessing, monitoring or receiving any communication from:
- you intended to be provided to Bano; or
- Bano intended to be provided to you.
- You acknowledge and agree that Bano may disclose your name and other Personal Information and financial information about you, and any relevant details of an Authorised User, to Bano’s employees, Representatives, officers, agents, and affiliates, as well as to a governmental entity or self-regulatory authority, an internet service provider or any other third party agent or service provider for any purpose related to offering, providing, administering or maintaining the Bano services, or to comply with applicable Laws.
- The information provided on the Website is to be used for the purpose of you using Bano’s services only, and not for any other purposes. Using the Website does not transfer intellectual property rights to you.
- In appropriate cases all communications and information concerning you held by Bano, may be disclosed to, and reviewed by, law enforcement agencies and regulatory authorities. In addition, you agree to comply with all applicable money laundering and counter terrorism financing Laws, including, but not limited to, the requirement to obtain or provide satisfactory evidence of the identity of any person whom you may represent in any Tansactiron entered into with Bano.
- You agree and consent to Bano (or its agents) making a verification request to a credit reporting body to assist in verifying your identity for the purposes of the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (and related rules and regulations). You also agree and consent to the disclosure of your Personal Information for his purpose including your name, residential address and your date of birth.
- You agree and consent to Bano providing your full name, address and any other details as a reasonably requested by a beneficiary’s bank or financial institution or as required to comply with applicable Laws.
6. AUTHORISED USERS
- You shall provide Bano with a list of people authorised to access Bano’s services and/or enter into Transactions on your behalf (each an “Authorised User”).
- You shall immediately notify Bano when:
- any new person becomes an Authorised User; or
- any existing Authorised User is no longer entitled to be an Authorised User.
Upon Bano receiving such Notice, the change in Authorised User is effective immediately subject to us collecting and verifying identification documents to our satisfaction. However, the Notice shall not affect any Transactions already executed.
- Any appointment of an Authorised User shall remain in full force and effect as an appointment in writing required by the Agreement unless and until Notice of cancellation of appointment and/or replacement has been delivered to Bano’s registered office.
- All Instructions given and accepted by an Authorised User will be deemed to be Instructions authorised by you and shall be binding upon you.
- Until you have provided a Notice to Bano to the contrary, Bano may continue to assume that all existing Authorised Users have authority to execute legally binding Transactions with Bano.
- You hereby indemnify and agree to hold Bano harmless in respect of any loss incurred by an Authorised User entering into any Transaction contemplated under this Agreement.
- You will take reasonable steps to ensure that each Authorised User complies in full with this Agreement.
- Bano reserves the right at any time to refuse the appointment or continuation of an Authorised User without reason.
7. ACCOUNT OPENING
- To open an Account, you must complete an Account Opening Form.
- You must provide Bano with accurate, complete and current information as requested in the Account Opening Form, and notify Bano of any changes to the information provided.
- Bano reserves the right to refuse to provide you with an Account and is not required to provide you any reasons for its decision.
- Bano may hold or suspend access to your Account at any time if Bano reasonably believes that fraud is involved, that there is a risk associated with your Bano Account, or that you have breached this Agreement or any applicable Laws.
- Your Account may only be used to:
- receive funds (AUD) from a bank account held in your name with an Australian ADI,
- receive funds (AUD) from a third party’s bank account held with an Australian ADI;
- receive funds (AUD) from a third party’s account held with Bano;
- make payments (AUD) to a bank account held in your name with an Australian ADI;
- make payments (AUD) to a third party’s bank account held with an Australian ADI; and
- make payments (AUD) to a third party’s account held with Bano.
8. ADDING MONEY TO YOUR ACCOUNT
- Money can only be added to your Account by:
- transferring funds (AUD) from a bank account held in your name with an Australian ADI;
- a third party transferring funds (AUD) from their bank account held with an Australian ADI; and
- a third party transferring funds (AUD) from their account held with Bano.
- Bano will credit your Account with funds received on your behalf upon receipt of the cleared and settled funds.
- You agree and acknowledge that Bano may refuse to accept or may return any payment of money made into your Account, and that Bano does not accept any liability or responsibility for any loss, cost or expense incurred or suffered by you in connection with such non-acceptance or return.
- Bano may set minimum and maximum deposit amounts and vary them from time to time. Such minimum and maximum deposit amounts will be published on the Website and on the Platform.
9. PROVIDNG INSTRUCTIONS
- When you, or an Authorised User, contacts Bano electronically or otherwise by the
Internet, or by telephone, Bano may, but is not obliged to, ask for or clarify the
following information where applicable:
- your Account number;
- your further identification details;
- the Transaction type (i.e. deposit, transfer);
- the Transaction amount;
- the beneficiary details (i.e. name, account details); and
- any identification reference you would like to be sent with the payment instruction.
- Collectively, though not exhaustively, the information referred to in clause 9.1 or any portion thereof, constitutes the “Instructions”.
- Bano is not obliged to act on any Instruction unless it has been validly submitted. Bano may also request that you provide it with further information or documentation in respect of any Instruction.
- You shall indemnify Bano for any error made by you or an Authorised User in providing Instructions to Bano.
10. PAYMENT TRANSACTIONS
- If you provide Instructions in relation to a Payment Transaction, Bano will immediately provide you with, either via the Internet, Platform or verbally, the details outlining the payment and beneficiary information. These are the “Payment Transaction Terms”. You are required to check Payment Transaction Terms carefully.
- If you, or an Authorised User, indicate by clicking the relevant button on the Bano Platform (or by telephone where the Bano Platform is not available) that you accept the Payment Transaction Terms, then you will be bound by the Payment Transaction Terms and this Agreement.
- Bano may set minimum and maximum transaction values in relation to Payment Transactions and vary them from time to time. Such minimum and maximum transactions values will be published on the Website and on the Platform.
- Bano will not process any Payment Transaction unless you:
- have sufficient cleared funds in your Account taking into account any fees or costs associated with the Payment Transaction; and
- provide it with the beneficiary bank account details. It is your responsibility to ensure that you provide us with the correct beneficiary account details.
- In the event that Bano completes a Payment when you do not have sufficient cleared and settled funds in your Account (including where a payment to your Account is disputed or reversed), you will be liable to Bano for the amount of the Payment Transaction plus interest at the rate of 3% per annum above the then current overdraft rate of Bano’s bank, calculated on a daily basis up to and including the date of repayment in full.
- If we receive an Instruction from you in relation to a Payment Transaction before 5 pm (AEST) on a business Day, your Instruction(s) will be deemed to have been received by us on that business Day. If your Instruction(s) in relation to a Payment Transaction is received after 5 pm (AEST) on a business Day or on a day that is not a business Day, your Instruction(s) will be deemed to have been received in the next business Day.
- Bano is not responsible for any delays caused by a beneficiary bank in processing a Payment Transaction. Accordingly, Bano cannot guarantee that the beneficiary’s bank will make funds available to the beneficiary on the day that it receives payment.
11. USING THE PLATFORM
- If you or an Authorised user uses Bano’s Platform, you confirm and accept the following:
- All Transactions must be completed using the logins and passwords allocated to you by Bano, and valid entry of such a login and password will constitute an authorisation by you to complete the Transaction specified irrespective of whether the login and password are entered by an Authorised User.
- You must ensure that the logins and passwords are kept secure and confidential. You must also ensure that each Authorised User to whom a login and password is provided, will keep them secure and confidential. You will advise Bano immediately if you have any reason to believe that the login and passwords allocated to you have not been kept secure and confidential;
- You must ensure that no unauthorised person is able to use the logins and passwords. As part of this obligation you must ensure that you and each Authorised User quits the Internet browser after using the Platform. If you believe that your logins and passwords are being used by an unauthorised person, you must immediately notify Bano. You will be responsible for any and all losses, liabilities, actions, proceedings, claims, damages and/or costs resulting from or arising out of any act or omission by any person accessing your Account through your logins and passwords, whether or not you authorised such access;
- Bano may at any time, acting reasonably and without Notice to you, suspend, withdraw or deny access to the Platform for any reason including but not limited to security, quality of service, failure by you to pay an amount when due or breach by you of any provision of this Agreement. If and while such access is suspended you will be able to deposit funds into your Account but you will not be able to withdraw or transfer any funds from your Account. To the extent permitted by law, you agree not to make any claim against Bano in this regard.
- Bano may delay, decline or reverse any Instruction if it reasonably suspects that the Transaction might be unlawful or might be associated with crime or if Bano reasonably believes that by carrying out the Transaction, it might breach any of its obligations, or if you are breach of this Agreement. Bano will not be liable to you if we delay, reverse or refuse to carry out your Instruction.
- If you dispute that you have carried out a Transaction using the Platform, we will investigate. You are required to co-operate with us in relation to any such investigation.
- By using the Platform, you will be able to:
- obtain information relating to the balance of, and Transactions undertaken in relation to, your Account;
- issue Instructions to Bano;
- create and manage beneficiary information; and
- use any other facilitates that Bano may make available from time to time via the Platform.
- Bano may change the minimum specification required to access the Platform and may make operational changes to and alter the services currently available at any time. Bano will notify you of such changes by either placing a message on the Bano Website, the Platform or by email or SMS;
- You are responsible for obtaining, maintaining and ensuring compatibility of your electronic software, devices and equipment. Bano will not be responsible for any loss of or damage to your data, software, computer, electronic devices, telecommunications or other equipment caused by use of the Platform, unless such loss or damage is directly and solely caused by our negligence or deliberate default;
- You are responsible for ensuring that your electronic devices and equipment are free from viruses and other malware, and Bano will not be responsible for any losses incurred by your failure to do this. Bano shall use reasonable endeavours to keep the Platform free from viruses and corrupt files but cannot guarantee that the Platform will be free from infection by viruses or anything else with contaminating or destructive properties. Bano is not able to guarantee that access to the Platform will be uninterrupted, continuous or error free;
- You must not:
- misuse the Platform by knowingly introducing viruses, trojans, worms, logic bombs or other material which is malicious or technologically harmful;
- attempt to gain unauthorised access to the Platform or any server, computer or database connected the Platform; or
- attack the Platform via a denial-of-service attack or a distributed denial-of-service attack.
By breaching this provision, you may also commit a criminal offence. Bano may report any such breach to the relevant law enforcement authorities and will co-operate with those authorities by disclosing your identity to them. In the event of such a breach, your right to use the Platform will cease immediately and without Notice. Bano will not be liable for any loss or damage caused by a distributed denial-of-service attack, virus or other technologically harmful material that may infect your electronic devices and equipment;
- You will be liable for all Transactions made when using the Platform including instances of misuse, fraud or abuse by you or Authorised Users or whether you or an Authorised User have disclosed login or password details to a third party.
- Bano will not accept Instructions face to face at Bano’s Registered Office.
- If the Platform is unavailable, an Authorised User may request Bano to accept Instructions and enter into Transactions by telephone. Bano may check the authority of the caller by requesting the caller give his or her name and confirming that such name has been notified to Bano by you as an Authorised User. Bano may at its discretion ask the caller for additional information to confirm the caller’s identity. Upon such check confirming the identity of the caller, Bano may assume that the caller has the full authority as previously advised by you.
- You acknowledge and agree, and will ensure that each Authorised User acknowledges and agrees, that Bano may make a recording of any telephone conversation between any person and Bano at any time. The recording remains the property of Bano. The telephone recording can be used by Bano to confirm the terms and conditions of any Transaction where there is dispute with a client as to the terms of the Transaction, and for training, monitoring and compliance purposes
12. BANO’S AUTHORITY
- Bano does not act as principal in any Transaction. In submitting an Instruction, you appoint Bano as your agent to do all things necessary to give effect to your Instruction.
- You authorise Bano to conduct Transactions in relation to your Account as far as is necessary to give effect to your Instructions.
13. METHOD AND TIMING OF PAYMENT
- You must not deposit physical cash into Bano’s accounts under any circumstances. Bano has absolute discretion as to whether you may pay by cheque.
- Any sums that you owe to Bano must be paid in one of the following:
- by online bank transfer;
- by same day bank transfer;
- by cheque (with the consent of Bano);
- You must have sufficient cleared funds deposited in your Account before Bano will execute your Instructions and effect Transactions for you.
- Bano is not responsible for any fees or charges imposed by third party banks or other counterparties, which are incurred by you in connection with the use of Bano’s services.
14. AUTHORISATION LIMITS
- You may inform Bano of an authorisation limit applicable to some or all Transactions either in general or for particular Authorised Users.
- Any authorisation limit provided by you to Bano may be withdrawn by you at any time by giving Notice to Bano.
- Bano may, at its own discretion, impose an authorisation limit on you and/or one or more Authorised Users at any time, by providing Notice before the imposition of the limit.
15. CANCELLATION OF A TRANSACTION
- If, after a Transaction has been executed you inform Bano that you wish to cancel the Transaction, or this Agreement allows Bano to treat you as having terminated the Transaction or this Agreement, Bano may terminate at its complete discretion either the Transaction alone or the Transaction and this Agreement.
- If you cancel a Transaction, you are liable for any loss or damage suffered by Bano.
- Bano reserves the right to charge an administration fee representing its administration costs in cancelling a Transaction.
- You acknowledge that it may not be possible to cancel or alter a Transaction and agree that Bano will not be liable for any loses in the event that a Transaction cannot be cancelled.
16. PAYMENT RECALL
- If you wish to recall a Transaction which was made in accordance with your Instructions, Bano will use reasonable endeavours to assist you to recall the payment.
- You agree to indemnify Bano in relation to any recall request.
- You acknowledge and agree that Bano will not be liable in the event that a payment cannot be recalled, including where the beneficiary of the payment is required to provide their consent to the recall and refuses to do so.
- Bano reserves the right to charge an administration fee representing its administration costs in attempting to recall a Transaction.
- In the event that you receive a payment into your Account by mistake (where for example, a third party mistakenly transfers money to your Account), you acknowledge and agree that we may deduct that amount from your Account and return it to the person who made the mistaken payment.
17. PAYMENT REVERSALS AND REMOVAL OF FUNDS
- Bano may, without notice, reverse a Transaction or remove funds from your Bano Account in certain circumstances, including where it reasonably suspects that the Transaction involves fraud or where it reasonably believes that there is a risk associated with the Transaction or your Bano Account.
- You agree to indemnify Bano in relation to any payment reversal or removal of funds.
- You must not chargeback, recall or cancel any Transaction you make to transfer funds to your Account.
- If you seek to chargeback, recall or cancel any Transaction you make to transfer funds to your Account, you will be liable to Bano for any fees that Bano incurs as a result. Bano may deduct such fees from your Account.
19. SET OFF AGAINST MONIES OWED
- In addition to other remedies available to Bano, if you fail to pay any amount when due under this Agreement, Bano may, to the extent permitted by Law, set-off such amount against any amount payable by Bano to you.
- To the extent permitted by Law, Bano is entitled to set-off against any amounts due to it by you, any amounts received by Bano from or on your behalf including but not limited to moneys received or held on your behalf. Bano may determine the application of any amounts which are to be set-off at its own discretion.
- You must not set-off against any amounts you owe to Bano, any amounts Bano owes to you.
- Bano will use all reasonable efforts to process your Transaction(s) in a timely basis. However, Bano shall not, in the absence of wilful misconduct, be liable for the loss of any funds or delays, damages, failures or errors in the completion of the Transaction(s).
21. FEES AND COSTS
- We may charge you a fee for providing you with our services under this Agreement. Our fees are published on the Website and Platform and are updated from time to time. We will provide 7 days’ Notice of any variation to our fees.
- Bano may impose other fees and charges for using its services, by providing Notice to you. If you do not consent to the charges, you can terminate the Agreement and the charges will not apply to new Transactions. If you terminate the Agreement under this clause, all existing Transactions will survive the termination of this Agreement.
- Bano may deduct any fees owing to it from your Account.
- In some circumstances a number of intermediaries may be involved in a Transaction and may deduct a charge. The receiving bank may also take a charge. These charges cannot always be calculated in advance, and you will be liable for these expenses.
- Bano will not be liable for losses that result from fees under clause 21.4 being levied. Bano will use its best endeavours to ensure that all fees associated with a Transaction are disclosed to you on the Platform. However, this may not always be possible.
- Bano may receive referral fees and/or commissions from product providers and other third parties in connection with its financial products and services.
22. CLIENT MONEY
- You agree that Bano may aggregate money paid into your Account (“the Monies”) with funds received from other clients into a single or multiple designated account(s) (“Client Money Account”), which will be maintained as required by law.
- You consent to and direct Bano to:
- retain any interest accrued from time to time on the Monies, and to invest that money as permitted by Law;
- withdraw Monies that constitute remuneration payable to Bano; and
- withdraw Monies that Bano is otherwise entitled to pursuant to Law.
- If you are a Wholesale Client, you authorise and direct Bano to withdraw, apply or
otherwise utilise the Monies:
- in order to meet obligations (the Obligations) incurred by Bano in connection with the Transactions;
- in order to enforce other rights that Bano has under this Agreement; and
- for any other reason allowed by Law.
- You agree that when Bano uses the Monies for a lawful purpose as set out in this clause 22, the Monies do not belong to you and do not constitute a loan or constructive trust in your favour.
23. CIRCUMSTANCES BEYOND BANO’S CONTROL
- If Bano is unable to perform its obligations under this Agreement or a Transaction because of factors beyond its control or because of a Force Majeure Event, Bano will notify you as soon as is reasonably practicable and will use reasonable endeavours to secure the return of any money paid by you in respect of which Bano has been unable to discharge its obligations under this Agreement.
- In the absence of any fraud, wilful default or negligence on the part of Bano, Bano will not be liable for any damages, claims, losses, liabilities or costs resulting from an event or factor beyond its control or a Force Majeure Event.
24. THIRD PARTY CONTENT
- You acknowledge that information or data provided by a third party product provider (“Third Party Provider”) which is not associated with us (“Third Party Information”), is for informative purposes only and such Third Party Information does not in any way constitute General Advice provided by Bano.
- Any number of financial products and/or services may be provided through a Third Party Provider. Unless otherwise noted, all authority granted to us, or limitations of liability to us, shall include all members of Bano, including officers, directors, employees, Representatives and agents.
- You agree that Bano is not responsible for any Third Party Information and that we make no warranties, express or implied, as to any such Third Party Information. You acknowledge and agree that such Third Party Information does not reflect Bano’s opinions or policies and that Bano does not verify the accuracy or completeness of such Third Party Information.
- You acknowledge and agree that:
- Bano is not responsible for any third party advertisements or third party applications made available to you;
- you access third party advertisements or third party applications at your own risk;
- you may not have access to external dispute resolution schemes in relation to your reliance upon any Third Party Information.
- This Agreement may be terminated immediately by you or Bano by giving Notice to the other in writing. However, termination by either party shall not affect any Transaction previously entered into and shall not relieve either party of any outstanding obligations arising out of this Agreement, nor shall it relieve you of any obligations arising out of any Transaction entered into prior to such termination.
- In the event that Bano is made aware of, or has reason to believe, any of the following:
- that you have provided false or misleading information to Bano; or
- that you have participated or are participating or have assisted or are assisting in money laundering or terrorist financing; or
- that you are being officially investigated by law enforcement and/or regulatory agencies; or
then Bano, at its sole discretion, may terminate this Agreement immediately by Notice to you, and Bano at its sole discretion shall be relieved of any obligations set out in this Agreement or arising out of the Transactions contemplated by this Agreement, including any obligations arising out of any Transaction already entered into with Bano.
- Upon termination of this Agreement, Bano will, within 15 business days, return any money held in your Account (less any fees and charges that you owe to us) to an Australian bank account held in your name .
26. LIABILITY AND INDEMNITY
- You shall indemnify and hold Bano harmless from any and all liabilities, claims, costs, expenses and damages of any nature, including, but not limited to, reasonable legal fees and any fees and expenses incurred in connection with litigation, arising out of or relating to your or an Authorised User’s negligence, mistake or wilful misconduct, the violation of any law by you, or the breach by you of any provision of this Agreement.
- You also agree to promptly pay Bano for all damages, costs and expenses, including reasonable legal fees and expenses, incurred by Bano in the enforcement of any of the provisions of this Agreement. Your obligations under this Clause 26 shall survive the termination of this Agreement.
- You acknowledge that you will be liable for any losses which may be realised as the result of entering into a Transaction.
- Bano will use all reasonable endeavours to make payments to you or to any third party specified by you, in accordance with the timing specified in your Instructions. However, Bano shall not be liable under any circumstances for any direct, indirect or consequential loss (including any loss of profits) incurred as a result of a delay in funds reaching your nominated account.
- Bano is not responsible for any delays, charges or loss incurred due to errors in the payment or beneficiary information that you provide to us. You agree to indemnify Bano and be liable for any losses or charges incurred by Bano arising from such errors that you make.
- Nothing in this Agreement is intended to limit or exclude any liability Bano may owe you under any statutory rights you may have.
27. AMENDING THIS AGREEMENT
- The terms of this Agreement and any Transactions under it, may be amended by Bano at any
time. Bano will provide Notice to you of any such amendment. You agree to be bound by
the terms of such an amendment on the earlier of:
- ten Days after Bano has posted Notice of the amendment on the Website or Platform;
- upon providing Notice to you by email; or
- on the date you enter any transaction after the amendment.
- If you do not consent to the amendment, you can terminate the Agreement and the amendment will not apply retrospectively. Termination in this case does not affect any obligations owed by you, or rights of Bano with regard to Transactions undertaken prior to the termination.
- 27.3 Any other amendments must be agreed to in writing between you and Bano.
28. DISPUTE RESOLUTION
- Except to the extent that this clause is inconsistent with the requirements of any legislative or regulatory regime, the dispute resolution process set out in this clause shall apply. The parties must use all their reasonable endeavours to resolve any dispute arising in connection with this Agreement or any Transactions thereunder.
- If you have a complaint in relation to the Agreement or any aspect of your Account, you should raise this with our Complaints Manager.
- If the parties fail to resolve a dispute within 5 Days of one party giving notice to the other of the dispute, either party may, by giving notice to the other, refer the dispute to the parties' Senior Officers (where you are an individual no such referral is applicable) who, each party must ensure, must cooperate in good faith to resolve the dispute as amicably as possible within 10 days of the dispute being referred to them.
- This clause, however, does not limit your rights (if applicable) to take a dispute to an external dispute resolution scheme of which Bano is a member.
- Any notice required or permitted to be given under this Agreement or for the purposes of
this Agreement (“Notice”) shall be in writing and shall:
- If to you, be sent by prepaid registered mail or delivered by hand to your address as set out in this Agreement, or such other address that you designate in writing, or by Bano emailing your nominated email address, or by posting a Notice to the Website; and
- if posted on the Website, Notice is deemed to have been given 3 Days after the Notice was posted on the Website; or
- if the Notice was sent to your address, the Notice is deemed to have been given on the Day after the Notice was sent, unless delivered by hand in which case the Notice is deemed to have been given on delivery.
- If to Bano, be sent by prepaid registered mail or delivered by hand to the address of Bano set out in this Agreement or the PDS, or such other address as Bano designates in writing, and such Notice is deemed to have been given 3 Days after the Notice was posted, unless delivered by hand in which case the Notice is deemed to have been given on delivery.
- Any Notice given or made under this Agreement may also be sent by email if:
- the Notice is sent to the email address last notified by the intended recipient to the sender; and
- the sender keeps an electronic or printed copy of the Notice sent.
- A Notice sent by email will be deemed to have been given on the first to occur of:
- receipt by the sender of an email acknowledgement from the recipient’s information system showing that the Notice has been delivered to the email address stated above;
- the time that the Notice enters an information system which is under the control of the recipient; or
- the time that the Notice is first opened or read by an employee or officer of the recipient.
- It is your responsibility to notify Bano of any changes to your contact details.
- This Agreement shall be governed by, and construed in accordance with, the laws of New South Wales, Australia. The parties agree to irrevocably submit to the non-exclusive jurisdiction of the courts of New South Wales, Australia.
- At no time shall either party enter into commitments for, or in the name of, the other
party or use their Intellectual Property for any purpose whatsoever. Except as
specifically provided for in this Agreement, neither party will:
- use the other party’s name or Intellectual Property without the prior written approval of the other party; or
- represent itself as being affiliated with, or authorised to act for, the other party.
- Any rights or obligations that you may have pursuant to this Agreement shall not be assigned, transferred, sold, or otherwise conveyed, except with the prior written consent of Bano. Bano may, however, transfer any rights or obligations it may have pursuant to this Agreement to another party without your consent. Such an assignment shall only take place if a reasonable person would not expect it to cause detriment to a typical client of Bano. You will execute any documents (including a deed of novation) reasonably required by Bano to effect such a transfer. If you do not agree to Bano assigning its rights, you may terminate this Agreement. However, termination in this case does not affect any obligations then owed by you, or rights of Bano prior to termination of the Agreement.
- You are responsible for the payment of all taxes that may arise in relation to your Account. You are responsible for obtaining your own tax advice in relation to this Agreement, your Account and any transactions you undertake in relation to your Account.
- If any provision of this Agreement is determined to be invalid or unenforceable by a court of competent jurisdiction, such clause will be severed from the Agreement and the other provisions of this Agreement will remain in full force and effect.
- No failure or delay by us to exercise any right or remedy provided under this Agreement or by Law shall constitute a waiver of that or any other fight or remedy. Nor shall it prevent or restrict the further exercise of that or any other right or remedy.