General Terms & Conditions of Use
1. Dictionary / defined terms
Capitalised terms used in these Terms but not otherwise defined are defined in the Dictionary set out at the clause 25 of these Terms.
2. ADS Platform
ADS hosts, maintains and, subject to these Terms, make available to You (and other Users), its online platform for connecting Borrowers, Brokers and Lenders in relation to potential financing transactions (the “ADS Platform”). The ADS Platform is an online platform accessed through our Website (and supplemented from time to time by services provided directly by Us other than through the Website, for example by email communications) provided by Us to You (and to other Users) to facilitate connection between Borrowers and Lenders, and between Brokers and Lenders, in relation to potential financing transactions. The ADS Platform allows Lenders to view, search and consider potential financing transactions proposed by Borrowers and Brokers and to contact those Borrowers and Brokers. It also allows Users to search and consider Lender profile information, and for Borrowers or Brokers to contact Lenders directly. Our role is to host, maintain and manage the ADS Platform (including its search / filter functions), but we are not the creators of any of the User Content on the ADS Platform. The ADS Platform may also make suggestions to Users in relation to User Content which We think may be of interest to Users, or in relation to connections with other Users which we think may be useful to our Users, and We may also filter or rank or present User Content and other data in ways We think may be useful to our Users.
3. Your Account and Access
In order to use the ADS Platform (other than in relation to viewing areas of our Website that are publicly available), You are required to register and create an Account with us. To do so, You must complete the registration process in the manner set out on our Website, and/or any other registration or account-creation requirements we may require from time to time. By registering and creating an Account with Us, You agree that all information You provide to Us is accurate, up to date and not misleading and does not infringe any person’s rights. You also agree to update Your details if any of them change. If you register an Account with Us as a “Lender”, you represent and warrant to us that you are a bank or non-bank lender or other entity engaged in the business of providing finance and hold all applicable licences required to conduct that business. If you create an Account with Us as a “Broker”, you represent and warrant to us that you are engaged in the business of arranging or brokering financing for third parties, that you are suitably qualified and that you hold all applicable licences required in relation such business. Your Account is personal to You and non-transferable. You are responsible for all of the activities that occur under Your Account. You should carefully choose Your password and username and protect them from unauthorised use. Please let Us know immediately of any unauthorised use of Your account or any other breach of security. We are not liable for any loss if someone else uses Your password or account. Except to the extent expressly permitted by these Terms, you must not transfer your Account details or provide access to the ADS Platform or your Account to any third party or otherwise use, or make available for use, the ADS Platform for the benefit of any third party. Access to the ADS Platform is permitted on a temporary basis, and We reserve the right to suspend, withdraw, discontinue or amend all or any part of the ADS Platform without notice. We will not be liable if, for any reason, the ADS Platform is unavailable at any time or for any period. You are responsible for making all arrangements necessary for You to have access to the ADS Platform. You are also responsible for ensuring that all persons who access or view the ADS Platform through Your internet connection are aware of these Terms, and that they comply with them.
4. External sites and third-party service providers
In using the ADS Platform, You may come across links or references to external service providers, merchants or suppliers, including links to the websites of Lenders and Brokers. These are provided for convenience and information purposes only and We do not endorse, warrant, guarantee or make any promises about any information, products or services they may supply to You. Any transaction You have with these service providers or other third parties are between You and them, and We do not get involved. Provision of such links or references (by use of name, logo or otherwise) is in no way an association, sponsorship, endorsement or approval of any link or service provider or any information content accessed through such links. By accessing external website links to third party service providers and other sites through the ADS Platform, We do not promise that they are appropriate, that they work or that they are virus free. Should you decide to access any of the third-party websites linked to on this Website, you do so entirely at your own risk. We accept no responsibility for any loss or damage that may arise from Your use of, or engagement or transaction with, any third-party service providers or websites.
5. ADS Intellectual Property
ADS and its licensors (as applicable) own all Intellectual Property in and to the ADS Platform (including any updates, enhancements and new features, and including the source code for the Website) and the information and material displayed on it. This material includes, but is not limited to, the design, layout, look, appearance, graphics, trademarks, branding and logos. However, none of the User Content (including, without limitation, the logos and images of Users) is owned by ADS, and such User Content is displayed under licence from the relevant User. Your registration and use of the ADS Platform confers no rights whatsoever to the content or related Intellectual Property rights contained on the ADS Platform. Other than as permitted under these Terms, You agree not to monitor, use or copy our web pages or any content on the ADS Platform, including without limitation any price data. You must not copy, modify, distribute, sell or lease any part of our Intellectual Property, or the Intellectual Property of any User, other than in accordance with these Terms.
The ADS Platform, and the materials, information and User Content published on it (including User Content that contains Intellectual Property of a User), are protected by the copyright laws of Australia and treaties around the world. All such rights are reserved. Without limiting any of the foregoing, the trademarks, service marks and logos used on our Website (other than those relating to Users) are our registered or unregistered Trade Marks (“ADS Trade Marks”). You may not copy, reproduce, adapt, display or transmit any ADS Trade Mark in any form without our prior written consent. Our domain name https://ads.finance is our uniform resource locator (“URL”). You must not make any use of this URL on another website or digital platform without our prior written consent.
Subject to these Terms, We grant You a limited, personal, revocable, non-assignable, non-sublicensable and non-exclusive right to access and use (i.e. to download and display locally using the ADS Platform) the information and materials contained on the ADS Platform solely to enable You to enjoy the benefits of the ADS Platform as intended by Us under these Terms. Any use, reproduction, modification, distribution, sale, sub-licence or storage of the ADS Platform for any purpose other than using the ADS Platform in accordance with these Terms is expressly prohibited without prior written permission from Us.
6. User IP & Content
If you post or upload any User Content to or on the ADS Platform, and/or if you send any User Content to ADS, you grant ADS a perpetual irrevocable non-exclusive royalty-free licence to publish that Content on the ADS Platform and to otherwise use, manipulate, modify, adapt, copy and/or exploit that User Content for its private commercial purposes, except that nothing in this provision grants to ADS any ownership or other rights in any Intellectual Property of a User. Without limiting the foregoing, each User grants to ADS the right to use and publish that User’s name & logo and information publicly available on that User’s website for the purposes of operation of the ADS Platform, and this right survives termination of these Terms, provided that we will not make your name & logo visible to other Users generally if you have not selected your profile to be “Visible’ in your User Portal (excluding in relation to message exchanges with other Users initiated by you).
7. Information You provide to Us
Any registered User must promptly provide any information reasonably required by Us in order for Us to carry out any know your customer or anti-money laundering or anti-counter terrorism financing checks, or otherwise required to be collected by Us in accordance with, or to ensure compliance by Us with, any law or regulation applicable to Us.
“Confidential Information” includes information that We furnish or otherwise make available to Users with respect to financing opportunities displayed on the ADS Platform. This includes, without limitation, loan terms, borrower names, brokers names, lender names, property information, information relating to lenders, partners and third-party business and companies, pricing, and loan agreements. You agree that all Confidential Information obtained via your use of the ADS Platform shall be kept strictly confidential by you and used only for the purposes of the ADS Platform as intended to be used by Us and these Terms. Confidential Information must not otherwise be disclosed to any third party. Your obligations in connection with Confidential Information under these Terms do not apply to Confidential Information which you can demonstrate: (a) is publicly available other than through the ADS Platform; (b) was discovered or developed by you independently with reliance on the Confidential Information; or (c) is required to be disclosed by law, provided that you promptly notify us so that we have an opportunity to obtain relief in connection with such disclosure.
10. Security and integrity
While We endeavour to adhere to best practice policies and procedures (including encryption) and maintain strong security measures to prevent data loss and maintain the integrity of our systems and the information provided to us, We cannot guarantee that there will be no unauthorised access or loss of data, and We expressly exclude liability for any loss of data no matter how caused. You must not violate the security of the ADS Platform in any way. We may suspend or cancel Your account or Your access to the ADS Platform if We suspect any security violation. We may also inform any law enforcement body of any suspected unauthorised or criminal activity. Examples of security violations include: (a) attempting to gain unauthorised access to any part of the ADS Platform, servers or system infrastructure You were not intended to have access to; (b) interfering with or otherwise circumventing mechanisms in the ADS Platform intended to limit your use; (c) use the ADS Platform in a way that was not intended by Us; (d) attempting to reverse engineer the ADS Platform or any system or offering provided through it; (e) interfering with or disrupting (or attempting to interfere or disrupt) any servers or networks connected to the ADS Platform; or (f) sending or storing any harmful code (including, for example, any computer virus, trojan, worm or other code that is harmful or disabling or which assists in or enables unauthorised access to or corruption of data).
10. Changes to the ADS Platform and its availability
We may change or improve the ADS Platform at any time. For example, We may develop and distribute updates, enhancements or new features. We may also restrict access to all or any part of the ADS Platform, stop making the ADS Platform available or modify its availability in any way. We are under no obligation to update any User Content or other materials or information that may be out of date at any given point in time, but we may do so and the content on the ADS Platform is subject to change. We will always try to give Users notice of any changes to the ADS Platform or its availability before such changes take effect, although this may not always be possible. To the maximum extent permitted by law, We do not accept liability for any damage or loss which You may suffer or incur as a result of such actions.
12. Code of Conduct
Each Lender undertakes in favour of ADS to comply with the following Lender Code of Conduct in relation to their use of the ADS Platform and any transactions or potential transactions introduced via the ADS Platform:
(a) a Lender must at all times act honestly, professionally, in good faith and with integrity in any interactions with Borrowers or Brokers;
(b) a Lender must consider the financial circumstances of any borrower before entering into any debt financing transaction with them, and will not lend to a borrower unless the Lender believes in good faith upon the basis of reasonable enquiries that the borrower has the capacity to repay the finance (including interest, fees & other charges);
(c) a Lender must safeguard the confidentiality of information of other Users, and must manage any personal information in accordance with the Privacy Act;
(d) a Lender must perform reasonable ‘know your customer’ and AML / CTF checks on any borrowers, and must comply with relevant laws relating to money-laundering, anti-bribery and counter-terrorism financing;
(e) a Lender must deal fairly with any complaints made against them by any other user;
(f) a Lender must comply with the legal and regulatory obligations that apply to them, including without limitation the terms of any credit licence of financial services licence held or used by them;
(g) a Lender must not engage in any misleading or deceptive conduct in relation to another User, including in relation to any promotional, marketing or advertising materials provided to or made available to another User, including materials that are publicly available;
(h) a Lender must provide to prospective borrowers / customers full disclosure of the applicable contractual terms and conditions that will apply to their transaction, a statement of fees and charges, a full disclosure of all interest and other amounts payable, expressed in plain & concise language. This disclosure must include disclosure of the financing’s term, disbursement amount, repayment amount, total cost of credit (inclusive of interest, fees and expenses) and an APR;
(i) any fees, charges & expenses (for the avoidance of doubt, excluding interest and any origination/upfront fees) payable by the borrower must be reasonably having regard to the costs to which those fees, charges & expenses relate. Reimbursement of third-party costs must be at cost without any mark-up; and
(j) a Lender must disclose to the borrower any brokerage or commission that it is paying in relation to the financing transaction.
Each Borrower and Broker undertakes in favour of ADS that:
(a) they will use the ADS Platform, and deal with other Users on the ADS Platform, honestly, professionally, in good faith and with integrity;
(b) it will ensure that all information uploaded on or exchanged over the ADS Platform is true, accurate and not misleading;
(c) it will safeguard the confidential information of other Users;
(d) it will comply with all applicable laws in relation to its use of the ADS Platform and not use the ADS Platform for any illegal purpose; and
(e) (in relation to Brokers only) fairly disclose to any borrower or client on whose behalf it using the ADS Platform any brokerage or commission or other financial incentive that it may receive in relation to relevant financing transaction
(f) (in relation to Brokers only) comply with all legal and regulatory obligations applicable to it.
13. Prohibited uses
You must ensure that Your access to and use of the ADS Platform is not illegal or prohibited by any laws which apply to You. By using the ADS Platform, You undertake that You will not: (1) incorporate the ADS Platform or any User Content into a product or service you provide to a third party; (2) sell, license, rent, lend, copy, distribute or otherwise use or exploit the ADS Platform or any User Content, or any related Intellectual Property, for commercial use or in any context outside the ADS Platform; (3) use the ADS Platform for competitive analysis or to build competitive products; (4) remove or obscure any proprietary or other notices contained on the ADS Platform; (5) reverse engineer, disassemble, decompile, translate or otherwise seek to obtain or derive the source code, underlying ideas, algorithms, file formats or non-public APIs to the ADS Platform, except to the extent expressly permitted by applicable law (and then only upon advance notice to Us); (6) use or attempt to use any engine, software, tool, agent, or other device or mechanism (including without limitation browsers, spiders, robots, avatars, or intelligent agents) to harvest or otherwise collect information from the ADS Platform for any purpose, including without limitation use on third-party websites; (7) attempt to probe, scan, or test the vulnerability of the ADS Platform or any 1associated system or network, or breach security or authentication measures without proper authorisation; (8) do anything which is otherwise, in Our view, inappropriate or harmful to the ADS Platform; (9) use the ADS Platform or the information contained on it for any purpose other than the purposes permitted and described in these Terms; (10) use the ADS Platform or any information on it for any unlawful purpose or activity or in any other manner that could damage, disable, overload or impair the ADS Platform or the servers on which it is hosted;; (11) falsely misrepresent yourself, your age, your financial employment or personal circumstances or your affiliation with any person or entity; (12) use or attempt to use another person’s User Account without authorisation from us, or create a false identity in relation to the ADS Platform; and (13) encourage or assist any third party to do any of the above.
14. Outcomes and use
We have spent a significant amount of time developing and refining the ADS Platform and are confident that it is useful tool for our Users. However, We cannot promise or guarantee any specific outcomes from the use of the ADS Platform. To the maximum extent permitted by law, We do not make any representations or guarantees about the User experience, quality, or outcomes of any use of the ADS Platform. You acknowledge that the ADS Platform is provided on an “as is” and “as available” basis and that, to the fullest extent allowed by law, we expressly disclaim all express and implied warranties including, but not limited to, the implied warranties of merchantability, fitness for a particular purpose, title, and non-infringement.
15. Verified Users
Any User which the ADS Platform displays as being a “Verified User” (by way of the ‘Verified User’ logo/badge or otherwise) means that has satisfied our Verified User due diligence / information requirements to demonstrate that they are a bona fide Broker or Lender (as relevant) (the Verification Process). While reasonable care is taken in conducting the Verification Process, ADS relies upon the information provided to it by the relevant Verified User and that Verified User’s representations in relation to the accuracy, currency and completeness of such information. Without limiting any other provision of these Terms, clauses 16 and 17 below apply equally to Verified Users and the display of the ‘Verified User’ logo or other indication that a Broker or Lender is a ‘Verified User’ does not constitute a representation, warranty, guarantee or other assurance by ADS in relation to that Verified User (other than that they have satisfied our Verification Process). Without limiting any other provision of these Terms, You agree to release us from and hold us harmless against any cost, loss, liability or damage suffered or incurred by You in relation to a Verified User where the information provided to us by that Verified User during the Verification Process was incorrect, inaccurate, incomplete or misleading.
The ADS Platform is a services platform intended to facilitate: (1) the uploading and publishing of User Content by Users; (2) access, use and consumption of User Content by You and other Users; (3) the curation of User Content, and the recommendation of User Content to You and other Users, by Us (including search functions and using our proprietary software / algorithms); and (4) communication between Users and other Users. You acknowledge that any information, data and/or User Content displayed on the ADS Platform is intended to be general information only and should not be considered professional advice or a recommendation by Us to enter into discussions with, any commercial relationship with, or any financing transaction with or involving, another User. We publish the User Content on our ADS Platform, but we do not create any of the User Content, nor are we responsible for what is contained in any of the User Content. We do not endorse any User Content or any particular Lender, Broker or Borrower, nor do we endorse or recommend any potential financing transaction, and that fact that the ADS Platform might ‘recommend’ or ‘suggest’ certain User Content or Users to You (including by way of ranking, filtration or display of User Content or other information or data, or search results or the method of presentation of information) is not an endorsement of that User Content or User. Other than as expressly set out in these Terms, We do not vet or verify the qualifications, expertise, experience or ability to transact of any User, nor do we vet or verify the quality, creditworthiness, valid existence, bona fides or suitability for finance of any Borrower or potential financing transaction. We do not vet or verify the quality, accuracy, currency or appropriateness of any User Content, and We are not responsible for doing so. We are not responsible for updating any information or User Content displayed on the ADS Platform. Without limiting any of the foregoing, interest rates or other finance pricing information provided on or through the ADS Platform is indicative only and must be confirmed directly by the relevant finance provider, and will only be available if a binding contact is entered into with that finance provider. You acknowledge and agree that You must rely on your own judgment in deciding to act (or not to act) as a result of any User Content and/or in relation to any communications or transactions with other Users. ADS accepts no liability or responsibility for any action taken or not taken based on or using any User Content or other information contained on our Website or displayed through the ADS Platform, including (without limitation) any loss arising from a financing transaction entered into between Users.
17. Limitation of liability
By accessing and using the ADS Platform and any User Content, You assume all risks associated with such access and use. As there are many factors beyond Our control that may affect the performance or compatibility of the ADS Platform with certain software or hardware, We cannot promise that Your use of the ADS Platform will be uninterrupted or error or defect free or that errors or defects in the ADS Platform will be corrected. To the maximum extent permitted by law, We (and Our directors, employees and agents) do not accept any liability for, and You agree to release Us (and Our directors, employees and agents), and hold Us and them harmless from, any and all claims in relation to any loss, howsoever caused, suffered or incurred by You arising from or in relation to: (a) Your use of the ADS Platform; (b) Your consumptions or use of any User Content; (c) the consequences of disclosure of information to any other User; (d) the consequences of entering into any financing transaction or other commercial transaction or relationship with a User; and/or (e) any information provided to ADS by another User (including a Verified User) being incorrect, incomplete, inaccurate or misleading. Any liability We owe to any User is limited, to the maximum extent permitted under law, to the amount You paid to use the ADS Platform or, in the event that no such payment was made, a sum of 100 Australian dollars. To the maximum extent allowed at law, in no event will We be liable for any direct, indirect, incidental, special, exemplary, consequential, or other damages or losses (including, but not limited to, loss of profits, business interruption, loss of program or data), without regard to the form of action, whether under legislation, in contract, tort, negligence, strict liability, or otherwise, arising out of or in connection with the ADS Platform, or any User Content, service, site or link displayed on or accessed through or in relation to the ADS Platform.
18. Indemnity and Release
You agree to indemnify, defend and hold Us (and Our directors, employees and agents) harmless from and against all claims, liabilities, losses and expenses (including, without limitation, reasonable legal fees on a full indemnity basis, and including liability for negligence and any indirect or consequential or economic losses or loss of profits) that arise from: (a) activity which You engage in with or through the ADS Platform; (b) any breach of these Terms by You; (c) any breach of any rights of a third party by You; (d) any breach of any applicable laws or regulations by You; or (e) any transaction, dispute or other dealing between You and another person that arises from or through the ADS Platform or in relation to any User Content or User.
19. Changes to these Terms
We may update these Terms at any time, with such updates taking effect when You next use the ADS Platform or after 30 days, whichever is sooner. No other amendment to the agreement constituting these Terms will be effective unless made in writing, signed by You and by Us. We will use reasonable endeavours to give You notice of any update to these Terms (which notice may be through the Website) before the change comes into effect, although this may not always be possible. If You continue using the ADS Platform after an update to these Terms is published on our Website, You are deemed to have agreed to the update and will be bound by these Terms as amended.
If you have any complaints or comments in relation to the ADS Platform or any content on it, please contact us at firstname.lastname@example.org and we will address the matter accordingly (and in our sole discretion), including for example by removing or editing content. All action taken by us (and whether we take any action) in relation to a complaint made by You or another User is at our absolute discretion. We are not responsible for resolving or dealing with any disputes, disagreements or matters in relation to any dealings between You and any other User, and we are not obliged to be involved in such disputes, disagreements or matters in any way. If You have a dispute with another User, You release us (and our directors, employees and agents) from any and all claims, demands and damages (actual and consequential) of every kind and nature, known or unknown, arising out of or in any way connected with such disputes.
21. Termination / Suspension
We may suspend or terminate Your access to the ADS Platform (or any part of it) or your Account, if We consider that You are in breach of any provision of these Terms, or otherwise at any time at Our discretion. We are not required to provide You with any reason.
22. Waivers; consents
Except as specifically contemplated by these Terms, no representations, statements, consents, waivers or other acts or omissions by us shall be deemed legally binding on us, unless documented in writing.
These Terms and any disputes or claims arising out of or in connection with them or their subject matter or formation shall be governed by the laws of the State of New South Wales. You submit to the jurisdiction of the courts of New South Wales in respect of any claim arising from, or related to, these Terms, although We reserve the right to bring proceedings against You for breach of these Terms in Your country of residence or any other relevant jurisdiction.
In these Terms, unless the contrary intention appears:
“Account” means the digital account created by a User with Us to use the ADS Platform.
“ADS Platform” means the digital online platform provided by Us to You and other Users via the Website for the collection, display and publication of information relating to Users and potential financing transactions, together with all search, communication and other functions built into the Website.
“Intellectual Property” means any registered or unregistered rights in any copyrights, patents, inventions, discoveries, trademarks, processes, systems, methods, know-how, designs or confidential information or any rights of a similar nature under the laws of Australia or anywhere else in the world.
“Terms” means these terms and conditions.
“User” means any person who accesses, or otherwise uses, the ADS Platform, including users of our Website who do not have Accounts with Us, and including Brokers, Borrowers and Lenders.
“User Content” means any information, data, text, graphics, photographs, videos, trademarks, logos, sounds, music, audio clips, artwork, computer code, software, scripts, written posts and comments, material, and interactive features generated, provided, used, displayed, or otherwise accessible on or through the ADS Platform.
“Lender” means a User who has registered an Account with us as a lender or provider of finance.
“Broker” means a User who has registered an Account with us as a finance broker.
“Borrower” means a User who has registered an Account with us as a borrower or potential borrower of finance.
“Verified User” means a User that has satisfied our Verification Process as described in clause 15 of these Terms.
“Website” means the website operated by Us at https://ads.finance/ and includes, without limitation, any subdomains and services associated with such website.
“We”, “Us”, “Our” means Alternative Debt Pty Ltd ACN 613 442 381 (trading as Alternative Debt Solutions) and its related bodies corporate and associates (as defined in the Corporations Act 2001 (Cth))
“You”, “Yourself”, “Your” means any person, company or organisation who is a User.