STREAM - General Terms and Conditions of Use. Please scroll to the bottom to activate tick box.
Fifo Capital SCF Pty Ltd (ACN 620 525 500) of Level 16, 390 St Kilda Road, Melbourne, Victoria (“Fifo”) provides an invoice management platform called STREAM and supply chain finance facilities. These terms and conditions apply to an agreement between Fifo and a person (the “Supplier”) that provides goods or services.
1 INTRODUCTION
1.1 The Supplier will sell Goods or provide Services to Customers. A Debt may be owed by a Customer to the Supplier for those Goods or Services. The Supplier may use Fifo’s electronic communication platform called STREAM to record the Debt.
1.2 The Supplier may agree to the Terms electronically; for example by a button on Fifo’s website being clicked or by an e-mail being sent. Any subsequent use of Fifo’s website or STREAM will also show that the Supplier agrees to the Terms. Any of those things will show that the Supplier has agreed to the Terms in the same way that it would have agreed if it had signed a document containing these terms and conditions.
2 STREAM PROVISIONS
2.1 An Authorised Person may access STREAM to upload particulars of the Debts and obtain other information. The information which is available through STREAM and the functions which can be carried out using STREAM will be determined by Fifo from time to time. It is the Supplier’s responsibility to obtain and maintain equipment necessary to use STREAM.
2.2 Fifo can end, suspend or restrict the Supplier’s use of STREAM at any time without giving the Supplier notice.
2.3 Fifo may allow access to STREAM to any person supplying the identifier (login) given to the Supplier and the confidential character sequence (password) given to the Supplier or entered on STREAM. The Supplier will determine who should have access to STREAM and must ensure that the password provided by Fifo is changed the first time it is used. The Supplier must also ensure that the login and password are not misused; they are not disclosed to an unauthorised person; any record of the login is kept separate from any record of the password; and any record of the login and password is kept secure. The Supplier agrees that any person who logs into STREAM using a login and password will be an Authorised Person.
2.4 The Supplier is responsible for and is bound by everything an Authorised Person does using STREAM. In particular, an offer made in accordance with using the early payment feature of STREAM, if an early payment has been requested by the Supplier will be conclusively considered to have been made by the Supplier and the Supplier cannot claim that it was made without the Supplier’s authority. The Supplier must tell Fifo as soon as possible after the Supplier becomes aware of the loss, theft or misuse of the password or after the Supplier suspects it has become known to an unauthorised person.
3 PRIVACY NOTIFICATIONS
3.1 Fifo’s privacy policy is available at www.fifocapital.com.au. It is incorporated into the Terms. If the Supplier requests a copy in a particular form (for example, in hard copy) Fifo will, free of charge, take reasonable steps to give the Supplier a copy in that form.
3.2 The privacy policy contains information about how the Supplier may access its personal information which Fifo holds and seek the correction of that information. The privacy policy also contains information about how the Supplier may complain about a breach of the Australian Privacy Principles or the Credit Reporting Privacy Code, and how Fifo will deal with the complaint.
3.3 The privacy policy includes Fifo’s policy about the management of credit information and credit eligibility information. It contains information about how the Supplier may access its credit eligibility information that Fifo holds; how the Supplier may seek the correction of its credit information or credit eligibility information that Fifo holds; how the Supplier may complain about Fifo’s failure to comply with Division 3 of Part IIIA to the Privacy Act or the Credit Reporting Privacy Code; and how Fifo will deal with such a complaint. It also specifies whether Fifo is likely to disclose credit information or credit eligibility information to entities that do not have an Australian link and, if relevant and practicable, the countries in which those entities are likely to be located.
3.4 The privacy policy includes information about credit reporting, including the CRBs to which Fifo is likely to disclose the Supplier’s credit information, and a statement of notifiable matters. The key issues contained in that statement are the way a CRB can use the credit information; the disclosure which Fifo can make to the CRB; how the Supplier can obtain Fifo’s policy about the management of credit-related personal information and the CRB’s policy about the management of credit-related personal information; the Supplier’s right to access information from Fifo, to request that Fifo correct information and to make a complaint to Fifo; the Supplier’s right to request CRBs not to use its credit reporting information for the purposes of pre-screening of direct marketing; and the Supplier’s right to request the CRB not to use or disclose credit reporting information about the Supplier if it believes, on reasonable grounds, that the Supplier has been, or is likely to be, a victim of fraud.
4 PRIVACY DISCLOSURE STATEMENT
4.1 Clauses 4 and 5 apply to each Supplier who is an individual.
4.2 Fifo collects personal information about the Supplier to determine whether Fifo should provide a facility which includes the provision of commercial credit to the Supplier and, if Fifo decides to provide it, to assist in the provision of the facility. This includes the assessment of an application from a person who could be a Customer, managing the account, deciding whether Fifo will accept an offer to purchase a Debt and recovering money.
4.3 The main consequence if all or some of the personal information is not collected is that Fifo may decide not to provide a facility or Fifo may decide not to accept an offer to purchase a Debt.
4.4 Fifo may collect personal information about the Supplier from someone other than the Supplier. The personal information could be collected from the Customer, CRBs, brokers and other introducers, and public registers.
4.5 Fifo usually discloses personal information to a Customer; a CRB; government authorities and others as required or authorised by law; brokers or other introducers; legal, financial and other advisers or representatives of Fifo and the Supplier; persons (such as mailing houses, mercantile agents, archivers, valuers and call centre operators) who provide a service to Fifo; insurers and underwriters; financiers and parties to a securitisation arrangement; and a body corporate which is related to Fifo. An entity included in the definition of “Fifo” may disclose personal information to another entity included in that definition. Generally Fifo does not disclose personal information to a person overseas although Fifo may do so in some circumstances, such as if a related body corporate is overseas.
5 PRIVACY CONSENT
5.1 By agreeing to the Terms the Supplier, subject to the Privacy Act and the Credit Reporting Privacy Code, consents to:
(a) Fifo receiving, using and disclosing the Supplier’s personal information as outlined in the Terms and Fifo’s privacy policy (so long as Fifo does not breach clause 5.7);
(b) a CRB disclosing any credit reporting information, other than repayment history information and credit reporting information which is derived from repayment history information, to Fifo, at Fifo’s request, for a commercial credit related purpose;
(c) Fifo collecting the Supplier’s personal information from someone other than the Supplier;
(d) Fifo disclosing personal information about the Supplier to another credit provider so long as the information is either not about the Supplier’s activities in relation to consumer credit or is credit reporting information. The Supplier also consents to Fifo obtaining information of that type from another credit provider. The disclosure or obtaining must be for the purpose of assessing an application made by a person for commercial credit;
(e) Fifo or any organisation Fifo authorises using or disclosing information (other than sensitive information) about the Supplier for the purpose of direct marketing. The Privacy Act imposes restrictions on that use and the Supplier will, in particular, have an opt-out right;
(f) Fifo disclosing any information Fifo has or obtains if Fifo considers the disclosure appropriate in connection with the operation or administration of the facility Fifo provides; if the disclosure is in connection with Fifo exercising or enforcing rights, powers or remedies; if the disclosure is to Fifo’s insurers, financiers, agents, contractors or advisers; or if the disclosure is to a Customer; and
(g) Fifo searching the register to disclose any registration in which the Supplier is registered as a grantor or a secured party.
5.2 If the Supplier consents to the disclosure of personal information (other than credit eligibility information) to a person (other than a CRB) who is not in Australia, sub-clause 8.1 of Schedule 1 to the Privacy Act will not apply to the disclosure. The Supplier consents to that disclosure.
5.3 If the Supplier provides personal information to Fifo about any other individual the Supplier will ensure that all legal requirements for that provision have been satisfied.
5.4 The Supplier’s consents and obligations continue until Fifo has agreed to the Supplier revoking them.
5.5 Fifo can be contacted by e-mail to privacyact@fifocapital.com.au or by letter posted to Level 16, 390 St Kilda Road, Melbourne, Victoria 3004 (attention Privacy Contact Officer, Fifo Capital Australia Pty Ltd).
5.6 Fifo is not obliged to do or not do anything unless Fifo’s liability is limited in a manner which is consistent with this clause.
5.7 Fifo and the Supplier agree that neither Fifo nor the Supplier will disclose to an interested person (as defined in section 275(9) of the PPSA), or any person at the request of one of those interested persons, any of the information described in section 275(1) of the PPSA. However, Fifo can make that disclosure if section 275(7) of the PPSA applies. The Supplier must not request or authorise the disclosure of any information of the kind described in section 275(1) of the PPSA.
6 LEGAL AND FINANCIAL ADVICE
6.1 Fifo recommends that the Supplier obtain independent legal, taxation and financial advice before the Supplier agrees to the Terms. Fifo does not provide advice of that type. By agreeing to the Terms the Supplier confirms that it understands the Terms and agrees to them as its free and voluntary act and that it has either obtained independent legal, taxation and financial advice or waived any right to independent legal, taxation and financial advice.
6.2 By agreeing to the Terms the Supplier confirms that it had access to them and had the opportunity to read them before it agreed to them.
6.3 Fifo may vary the Terms by giving the Supplier one month’s notice of the variation. The variation will take effect at the end of the notice period.
7 DEFINITIONS AND INTERPRETATION
7.1 The following definitions will apply.
“Authorised Person” means the person who has access to STREAM in accordance with clause 2.3.
“CRB” means credit reporting body.
“Customer”, in relation to a Debt, means the person that owes the Debt.
“Debt” means an existing or future right to receive payment for Goods sold or Services performed by the Supplier under any name or style. It includes all interest, costs, taxes, duties and other amounts recoverable from the Customer and the Collections. It also includes all Security Interests; rights under the Invoice, law or a PMSI (including the new value and its proceeds mentioned in section 64(3) of the PPSA); rights for restitutory relief; guarantees; indemnities; negotiable instruments and other instruments; goods which are returned by, or repossessed from, the Customer; invoices; chattel paper; statements; and accounting and other records (including electronic records) which evidence, secure or are connected with the Debt.
“Fifo”, in clauses 3, 4 and 5, means all and any one or more of Fifo Capital Australia Pty Ltd (ACN 121 427 183), Fifo Capital SCF Pty Ltd (ACN 620 525 500) and a franchise. A franchisee is any person who has entered into a franchise agreement with Fifo Capital Australia Pty Ltd and Fifo’s privacy policy explains how the Supplier can obtain the names and contact particulars of relevant franchisees. In all other clauses “Fifo” has the meaning given in the first paragraph of the Terms.
“Invoice” means the invoice for the sale of Goods or performance of Services.
“Services”, in relation to a Debt, means the services performed or work done, or which should have been performed or done, by the Supplier for the Customer, the performance of which gave rise to, or should have given rise to, the Debt. It includes the leasing or hiring of property.
“STREAM” means the internet based facility provided by or on behalf of Fifo. Amongst other things it enables the Supplier to make offers to sell Debts to Fifo.
“Terms” means these terms and conditions as they may be changed by written agreement between Fifo and the Supplier or by Fifo in accordance with clause 6.3. Where the context requires it means any agreement between Fifo and the Supplier the terms of which includes these terms and conditions.
8 INTERPRETATION
8.1 In the Terms some terms have the same meaning as in the PPSA, except to the extent the context requires that they not be given that meaning. Those terms are ADI, ADI account, Australian entity, chattel paper, financing change statement, financing statement, inventory, negotiable instrument, new value, perfected, proceeds, purchase money security interest and register.
8.2 In the Terms words implying the singular include the plural and vice versa. “Person” includes any entity and “its” includes theirs, his or hers. “In particular” and “including”, when used to introduce an item, do not limit the meaning of the words to which the item relates to items of a similar kind. Reference to the Supplier or Fifo includes its successors and assigns. Reference to a statute or statutory provision means the statute or provision as replaced, amended or re-enacted from time to time.
8.3 In clauses 3, 4 and 5 words which are defined in the Privacy Act 1988 have the same meaning.
