LIMEPAY AGENT SERVICES AGREEMENT

Last Updated : 31st May, 2022
Effective: 28th June, 2022

These General Terms set out the terms and conditions on which MarketNow Payments Pty Ltd (MarketNow) and Limepay Credit Pty Ltd (the Lender) (together we, our or us) agree to provide certain services to partner real estate agencies (Agents, you or your) in relation to the payment by vendors of amounts owed to the Agents in respect of marketing packages.

Summary of how this Agreement Works

MarketNow will provide payment functionality to you to enable you to offer Pay Now and Pay Later processing services to your Vendors (should you wish to do so).

For Pay Now Vendors, MarketNow will facilitate all payment processing.

For Pay Later Vendors, MarketNow will procure the provision of a 60 day Vendor Loan from the Lender to the Vendor to enable the Vendor to pay your invoice for marketing packages. The total cost to the Vendor of this loan equals 5.7% of the total loan amount (split between upfront fees and an interest charge) assuming on-time repayment.

Because the Vendor has 30 days to pay you for marketing packages, but in some cases you may need to make payments to suppliers prior to this time, there may be some effect on cashflow. Therefore, the Lender will extend the loan facility to you, a line of credit to assist you in smoothing cashflow relating to the making of payment for marketing packages.

If the Vendor pays the Marketing Amount to you within 30 days after the issue of the Agent’s invoice, we will not have provided the loan and this Agreement will not apply. If the Marketing Amount is not paid to you within 30 days, the Vendor Loan commences. This applies irrespective of whether the Vendor withdraws their property from the market.

1. The services

1.1   The following services will be provided to the Agent under this Agreement:

1.2  The parties acknowledge:

1.3  MarketNow and the Lender (as applicable) will comply with all Applicable Laws in relation to the provision of the Payment Services and the Loan Facility and maintain all licences, approvals and permits required in order to provide the Payment Services and the Loan Facility.

1.4  If MarketNow provides Payment Processing Services, you agree that MarketNow will charge the Vendor the Processing Fees. The Processing Fees are added to the Marketing Package Total payable by the Vendor at the time of a Transaction, and the amount of the Processing Fees are retained by MarketNow and the Marketing Package Total remitted to the Agent. Processing Fees are non-refundable to the Vendor in the event you approve a refund of all or part of the Marketing Package Total to the Vendor.

2. Agent obligations

2.1   You agree that you will not, during the Term, provide, or engage any other person  to provide, or enter into any arrangement with any other person to provide, any services which are substantively the same as, or similar to, the Pay Later Service.

2.2   You acknowledge and agree that:

2.3   In relation to the Pay Later Service, you must:

2.4   You must:

3. Loan Facility

3.1   The Lender will provide the Agent with access to the Loan Facility up to the Credit Limit to enable the Agent to pay invoices due and payable by the Agent in respect of Marketing Packages in advance of receipt of the Marketing Package Total and any  requested documentation from the Vendor.

3.2   Subject to clause 3.4, the Lender will provide to you the Drawdown Amount from a loan account opened in your name by paying the Drawdown Amount/s to you in accordance with the invoices presented to you for all or part of a Marketing Package.

3.3   Payment of the Drawdown Amount will be made within 3 business days of an eligible request.

3.4   The Lender reserves the right, in its sole discretion, to reject a request for a Drawdown Amount if the Vendor does not meet eligibility criteria set out in the terms and conditions for that Vendor Loan or is not able to agree or enter into to such terms and conditions, including unsatisfactory credit check results.

3.5   No further Drawdown Amounts will be advanced on the Loan Facility to you where you are in default, where the Lender has reason to believe there has been or will be a significant adverse change in your financial circumstances, where you no longer meet the Lender’s current credit criteria and lending guidelines, or where the requested Drawdown Amount exceeds the Credit Limit.

3.6   No further Drawdown Amounts will be advanced on the Loan Facility to you where you are in default, where the Lender has reason to believe there has been or will be a significant adverse change in your financial circumstances, where you no longer meet the Lender’s current credit criteria and lending guidelines, or where the requested Drawdown Amount exceeds the Credit Limit.

3.7   You must repay each Drawdown Amount no later than 30 days after the date on which the Lender advanced that Drawdown Amount to you (Due Date).

3.8   Your obligation to repay a Drawdown Amount is discharged where either:

3.9  No fees, charges or interest are payable on any Drawdown Amount repaid by the Due Date.

3.10  If you repay any amount owing to us on behalf of the Vendor, including any fees and charges under this Agreement, by bank transfer and you notify us by email that the bank transfer has taken place, we will impose a maximum of 10 business days hold on any interest or Late Payment Fees charged to the Vendor to allow for the bank transfer of the amount repaid to complete. We may charge interest or Late Payment Fees for this 10 business day period if this bank transfer is unsuccessful.

3.11  If there is a breach of this clause 3, the Lender may debit your loan account with all Enforcement Expenses. You agree to pay all Enforcement Expenses on demand.

4. Refunds

4.1   The Agent has sole discretion to approve a Vendor’s request for a refund. 

4.2   Where a refund is approved, or is otherwise due and payable, the Agent is responsible for returning the funds to the Vendor by direct debit, cheque, cash or any other means available to the Agent.

4.3   The Payment Services does not include the processing of refunds, and MarketNow accepts no responsibility or liability for processing refunds.

5. Indemnity, Liability and Disclaimers

5.1   You expressly understand and agree that except as otherwise set out in these General Terms, the Payment Services and the Loan Facility are provided on an “as is” and “as available” basis. We expressly disclaim all warranties of any kind, whether expressed or implied, including, but not limited to the implied warranty of merchantability, fitness for a particular purpose and non-infringement. In particular, we make no warranty that the Services will be uninterrupted, timely, secure, or error-free, the results that may be obtained from the use of the Services will be accurate or reliable, or that any errors in the Services will be corrected.

5.2   You agree to indemnify and hold MarketNow and the Lender, and our Related Companies (within the meaning given in section 9 of the Corporations Act 2001(Cth)), and our respective, officers, agents, employees and representatives (Indemnified Persons), harmless from any claim, liability, loss, cost, expense or demand that any Indemnified Person may suffer arising out of any third party claim in connection with your use of the Payment Services or the Loan Facility, or your breach of this Agreement or breach of any Applicable Law.

5.3   You expressly understand and agree that no Indemnified Person should be liable for any direct, indirect, incidental, special, consequential or exemplary damages, including but not limited to, damages for loss of profits, goodwill, use, data or other intangible losses (even if we have been advised of the possibility of such damages), resulting from:

5.4   To the extent MarketNow and/or the Lender cannot exclude our liability under or in connection with this Agreement or the provision of Services, MarketNow and the Lender’s total liability is limited to the Liability Cap.

5.5   This clause 5 is for the benefit of, and is enforceable by, each Indemnified Person.

6. Term and Termination

6.1   This Agreement commences on the date it is signed by both parties and continues until terminated in accordance with this clause 6.

6.2   After the Trial Period, this Agreement will continue for a fixed term of 12 months (Term). At the end of the Term, the Agreement  will automatically renew for a further 12 months (Renewal Term), and will also automatically renew for 12 months at the expiry of any Renewal Term, unless terminated by any party in accordance with this clause 6.

6.3   This Agreement may be terminated:

6.4   Following termination of this Agreement:

6.5   Termination of this Agreement does not affect any accrued rights or liabilities of any party and does not affect any provision of this Agreement that is expressly or by implication intended to come into or continue in force on or after termination (including clauses 3, 4, 5, 8 and 9).

6.6   You agree that all terminations for cause shall be made in MarketNow’s sole discretion and that MarketNow shall not be liable to you or any third-party for any termination of these General Terms or the Loan Facility.

7. Amendments to this Agreement

MarketNow and/or the Lender may amend these General Terms (including imposing new fees and charges) and the way we provide the Payment Services or the Loan Facility, with 28 days’ notice, at any time by posting the updated terms on the MarketNow website.

8. Privacy, Vendor Data and Confidentiality

8.1   Each party must:

8.2   The above obligations do not apply to information that:

8.3   In respect of Vendor Data:

9. Dispute Resolution

9.1   If a party considers that a dispute has arisen in connection with this Agreement, then that party must give written notice to the other parties setting out reasonable details of the nature of the dispute (Dispute Notice) within 7 days of becoming aware of that dispute.   Representatives nominated by each party will meet within 7 days of the date that the receiving parties receive the Dispute Notice and attempt in a good faith effort to resolve the dispute as quickly as possible.

9.2   If the nominated representatives are unable to resolve the dispute within 12 days of the Dispute Notice, then the parties may refer the dispute to mediation by a mediator agreed upon between them, or failing agreement, a mediator appointed by the Australian Disputes Centre or any body which replaces it.

9.3   If the dispute is not resolved within 30 days of its reference to mediation or if a party refuses to comply with its obligations for mediation, then any party to the dispute may commence court proceedings.

9.4   Nothing in this clause 9 prevents a party from seeking an interim injunction at any time where it deems appropriate.

10. General

10.1   Neither party may assign, transfer or novate any of their rights or obligations under this Agreement without the prior written consent of the other party (not to be unreasonably withheld).

10.2   The Agreement shall be governed by the laws of New South Wales and the parties agree to submit to the non-exclusive jurisdiction of the courts of New South Wales.

10.3   The failure of us to exercise or enforce any right or provision of the Agreement shall not constitute a waiver of such right or provision. If any provision of the Agreement is found by a court of competent jurisdiction to be invalid or unenforceable, the parties the other provisions of the Agreement shall remain in full force and effect.

10.4   This Agreement constitutes the entire agreement between the parties and supersedes any prior agreements, arrangements or understandings regarding the Services.

10.5   You agree that, except as otherwise expressly provided in this Agreement, there shall be no third party beneficiaries to this Agreement.

10.6   MarketNow and/or the Lender may provide you with notices and communications by electronic means including email, or by regular mail, to the addresses stated in the Specific Terms. You must provide notices to us by email to the email address stated in the Specific Terms (or such other email address notified to you from time to time).

10.7   Unless stated otherwise, all amounts specified in this Agreement are exclusive of GST (if any).

10.8   You must make payments of all amounts you owe us in full under the Agreement without any set-off or deduction.

10.9   No party will be liable to any other for any failure to perform its obligations under this Agreement during the time and to the extent that such performance is prevented by a Force Majeure Event. The party subject to a Force Majeure Event (the non-performing party) must notify the other party of the relevant details as soon as practicable after the Force Majeure Event occurs and endeavour to mitigate and remedy the effect of the Force Majeure Event and minimise the impact of the event on the other party.

11. Definitions

In this Agreement, unless the context otherwise indicates: 

Agreement means the Specific Terms together with these General Terms.

Applicable Law means all Acts, Regulations, Codes of Practice and any relevant circular, directive, policy statement and the like issued by any government or industry body which apply to the provision and receipt of the Services, including but not limited to:

Commencement Date means 30 days from the date the Vendor accepts the Vendor Loan terms and conditions. 

Confidential Information
means the confidential information of a party which relates to the subject matter of this Agreement, whether or not in written format, which is by its nature confidential or is designated by either party as confidential, and includes information relating to the business, affairs, products, trade secrets, technology, know how, finances, employees, customers or suppliers of that party and the terms of the Agreement, provided that all Vendor Data shall be Confidential Information of both the Agent and MarketNow.  

Credit Limit means:

Drawdown Amount/s means the sum of each amount that has been advanced to you by MarketNow for each Marketing Package under these General Terms.  

Enforcement Expenses
means the amounts reasonably incurred or expended by the Lender in relation to recovering any Drawdown Amount.

Force Majeure Event
means an event or circumstance beyond the reasonable control of any party which makes it impossible, impracticable or illegal to perform a party’s obligations under this Agreement, but does not include lack of funds for any reason.

Liability Cap means the amount of $10,000. 

Loan Facility means the line of credit provided to you by the Lender .

Marketing Package means advertising and marketing expenses, styling costs and any other expenses agreed between the Agent and the Vendor for the sale of the Vendor’s Property.

Marketing Package Total
means the full amount invoiced by the Agent to a Vendor for the Vendor‘s Marketing Package. 

Pay Later Services means facilitating the offer of Vendor Loans to Vendors by the Lender in order to allow Vendors to defer payment of the Marketing Package Total for a term of 60 days from the Commencement Date for a cost.

Payment Processing Services means payment processing and facilitation services provided by MarketNow to facilitate payments for Marketing Packages by a Vendor’s credit or debit card or other approved payment method.

Payment Services means the following:

Privacy Act means the Privacy Act 1988 (Cth). 

Processing Fees
means the fee charged by MarketNow for processing payment of each Transaction, being an agreed percentage of the Marketing Package Total based upon the different methods of payment offered to Vendors, and being the amount stated in the Specific Terms subject to MarketNow’s right to vary from time to time.

Property
means the real property owned by the Vendor and offered for sale through the Agent and in respect of which the Marketing Package Total is incurred. 

Refund Fee means the fee charged by MarketNow for processing a refund. 

Specific Terms means the document titled “Specific Terms”, setting out the commercial details in relation to this Agreement. 

Transaction
means transaction between the Agent and Vendor for the payment of the Marketing Package Total. 

Trial Period means a period of 4 months from the date this Agreement commences. 

Unpaid Balance on any given day means the amount you owe under the Loan Facility at the close of that day.

Vendor means the person selling their Property through the Agent and who has applied for the Vendor Loan for such sale.

Vendor Data means all information (in whatever form) collected by or on behalf of MarketNow in connection with a Vendor Loan or a Transaction relating to the Vendor, including, but not limited to Vendor name, phone number, email address and credit/debit card or payment details and includes “personal information” as defined by Privacy Act.

Vendor Loan means an advance of money made by the Lender to a Vendor for the purposes of paying the Marketing Package Total owed by the Vendor to the Agent and which advance was facilitated by MarketNow.

12. Interpretation