FREEDOM PAY TERMS & CONDITIONS

Freedom Pay Terms and Conditions – January 2021
The terms of use of Freedom Pay are set out in these terms and conditions and any associated Payment Plan.  Capitalised terms have the meaning set out below, under the heading ‘Meaning of words and interpretation’. 
 

1. Account
 

1.1 General

1. These terms and conditions govern all activities undertaken by you using your Account.

2. You are responsible for maintaining the security of the password for your Account.  If you suspect or know that the password for your Account has been made available to a third party or you are concerned about suspect or unauthorised activity on your account, you acknowledge that you must immediately notify us.

3. You are liable to us in respect of an unauthorised transaction when:

   1. you have failed to advise us of any suspected or unauthorised use of your Account; or

   2. you have provided information regarding your Account’s password to someone whether knowingly or not; or

   3. you have committed fraud.

4. We will not be held responsible for any unauthorised access and use of your Account unless such unauthorised access is the direct result of our failure to take reasonable steps to prevent such unauthorised access or use.

1.2 Your obligations​

1. You acknowledge and agree that you must:

   1. pay all fees and charges associated with your use of your Account and any Purchases;
   2. provide us with all information relating to your identity reasonably required and requested by us;
   3. ensure that all information provided by you to us is true, current and complete and does not contain any information that is false, inaccurate or misleading;
   4. not use your Account for unlawful, fraudulent or improper activity; and
   5. not permit or allow any person other than you to use or have access to your Account.

1.3 Closing your Account

1. pay all fees and charges associated with your use of your Account and any Purchases;
   1. there is no Balance Owing on your Account; and​

   2. there are no disputes or refunds in progress in relation to your Account.

2. We may suspend or close your Account at our discretion for any reason.
3. If we suspend or close your account pursuant to clause 1.3(b):
   1. we will notify you within five Business Days;
   2. you will not be able to make any further Purchases; and
   3. you must continue to satisfy all of your repayment obligations under this Agreement until such time as there is no Balance Owing on your Account.

 

2. Purchases
 

2.1 Payment Plan

1. When you agree to complete a transaction with a Merchant using your Account and the Purchase is approved by Freedom Pay, we will generate a Payment Plan for that Purchase.

 

2.2 Your Consumer Rights

1. As a consumer, you have certain rights under consumer protection legislation, including the Australian Consumer Law (Consumer Rights).  For more information on your Consumer Rights, you can visit the Australian Competition and Consumer Commission's website at www.accc.gov.au or the Australian Securities and Investments Commission website at www.asic.gov.au.

2. Nothing in this Agreement is intended to exclude, restrict or modify any of your Consumer Rights, including in a manner which would be considered unfair under the relevant consumer protection laws.

2.3 Exclusions of Warranties and Representations

1. We do not warrant that Merchants will accept Purchases.

2. We do not warrant that you will be able to use your Account for the full Purchase Price of a Product where you have insufficient funds available in your Account.  You must ensure that you have sufficient funds available in your Account to pay the Purchase Price before entering into a Sale Agreement with a Merchant.
3. We do not give any express warranty or guarantee as to the suitability, reliability, or availability of Products.
4. Subject to your Consumer Rights set out in clause 2.2, we do not give any implied warranties or guarantees.
5. Unless the law requires, we are not responsible for any defects in any Product acquired by you through the use of your Account.
6. You agree and acknowledge that:
   1. you or the Merchant (as applicable) are responsible for maintaining, servicing and repairing the Product pursuant to the terms of the Sale Agreement; and
   2. Freedom Pay has no responsibilities or obligations:
      1. to maintain, service or repair the Product; and
      2. for the performance, design or safety of the Product or for any injury, loss or damage suffered by any person from the use or misuse of the Product at any time, and you hereby indemnify Freedom Pay against any legal costs or liability which is incurred as a consequence of any claim by any person that is so liable.
7. Except as required by law, we do not guarantee continuous, uninterrupted or secure access to your Account and we make no representations or warranties regarding the amount of time needed to:
   1. process and determine your eligibility for an Account; and
   2. complete the processing of Purchases or payment of the Purchase Price.

3. Repayments and refunds

3.1 Repayments

1. Once we pay a Payment Amount on your behalf to the Recipient at your request, you owe us that amount. You must pay to us, in relation to each Payment Amount:
   1. the repayments in the amount and at the frequency or on the dates specified in the Payment Plan for the relevant Purchase from the Start Date (unless there is a Default, in which case you must pay us in accordance with this Agreement); and
   2. any additional fees not included in the Payment Amount.
2. If an amount is due on a day that is not a Business Day or a day that does not exist (e.g. 30 February) you must pay us that amount on the next Business Day.
3. The repayment amount stated in a Payment Plan excludes any government duties applicable to the repayment and does not include any fees or charges payable under a Payment Plan other than the Monthly Maintenance Fee (if applicable).
4. We will notify you of the Start Date for a Payment Amount. The Start Date for a Payment Amount will typically be the date we pay the Payment Amount to the Merchant, unless we notify you of a different Start Date.
5. You must make the repayments by direct debit from the bank account or credit card shown in the applicable Payment Plan or by any other manner approved by us. You must ensure that there are sufficient funds in that account to allow any repayment to be honoured.
6. You can make repayments or pay fees and charges ahead of time, if you like. 
7. We will apply a payment received in the following order in repayment of any unpaid amounts to the extent that the relevant items have been charged to your Account at the time the repayment is processed:
   1. enforcement expenses;
   2. government taxes, duties or charges;
   3. fees payable under this Agreement;
   4. any Outstanding Payment Amounts; and
   5. any other part of the Balance Owing.
8. All repayments, fees and charges, once paid, are not refundable unless we have received payment in error or you are entitled to a refund under the Australian Consumer Law or any other law.

4. Fees and Charges

1. Subject to clause 9.1(c), you must pay us:
   1. a Monthly Maintenance Fee of $6.00 which covers our reasonable administration fees in relation to this Agreement (such as monitoring repayments and issuing account statements). This fee is due and payable each month on the first Business Day of each month if the Balance Owing has been greater than zero on any day since the first Business Day of the previous month. This is only charged once each month; 
   2. a Late Payment Fee of $10.00 each time a repayment is not paid by the due date for payment as set out in the Payment Plan;  
   3. all additional government stamp and other duties and charges payable on receipts or withdrawals under this Agreement; and
   4. any reasonable Costs we reasonably incur in enforcing this Agreement after a Default, which includes enforcement expenses reasonably incurred by the use of our staff and facilities.
2. You authorise us to debit any of these amounts to your Account in which case they form part of the Total Amount Owing. We may do so on or after the date we pay them or the date they become payable by you or us. If they are not already due, they are due when debited to the Account.

 

5. Default

1. You are in Default if:
   1. you do not pay amounts due under this Agreement within 2 Business Days of their due date;
   2. you or another person on your behalf gives us or has given us incorrect or misleading information in connection with your Account, this Agreement, a Payment Plan or we conclude on the basis of evidence available to us that it is more likely than not that you have acted fraudulently in connection with your Account, this Agreement, or a Payment Plan; or
   3. you become Insolvent or are declared bankrupt or steps are taken to make you bankrupt or Insolvent.
2. If you are in Default, we will give you a notice stating that you are in Default. If you don’t correct the Default within the applicable grace period given in the notice (which we will decide, acting reasonably), then, at the end of that period and without further notice to you, the Total Amount Owing becomes immediately due for payment (to the extent it is not already due for payment). We may then sue you for that amount.
3. Reasonable Enforcement expenses may become payable under this Agreement in the event of Default and are payable in accordance with clause 4.

6. Disputes, complaints and refunds

6.1 Disputes and complaints

1. Subject to clause 6.2, if you want to dispute a transaction or make a complaint about your Account or a Payment Plan, you should tell us as soon as possible using the contact details set out on our website from time to time (or as otherwise advised to you) and provide us with sufficient information or documents for us to be able to investigate the matter. 
2. We will investigate the matter, and if we are unable to settle it to both parties’ satisfaction, we will advise you in writing of the procedures for further investigation and resolution and may request further relevant details from you.
3. Within 21 days of receipt from you of the details of the disputed transaction or your complaint, we will:
   1. complete our investigation and advise you in writing of the outcome of our investigation; or
   2. advise you in writing that we require further time to complete our investigation, unless there are exceptional circumstances in which case we will let you know the reasons for the delay.
4.  If we find that an error was made, we will make any appropriate adjustments to your Account (and any associated Payment Plan) and notify you in writing of the amount of any adjustment.

6.2 Refunds and returns

1. If you wish to seek the refund or return of a Product the subject of a Purchase you must:
   1. do so through the Merchant from whom you acquired the Product; and
   2. continue to make repayments to us and to pay any related fees and charges until the Total Amount Owing is paid in full.
2. Subject to clause 6.2(c), if we pay the Payment Amount on your behalf and you no longer wish to proceed with the good or service provided by the Merchant to which the Payment Amount relates you are still required to continue to make repayments to us and to pay any related fees and charges until the Total Amount Owing is paid in full.
3. If a Merchant agrees to refund you all or part of the Payment Amount for a Purchase while there is still a Balance Owing in respect of that Purchase, the refund will be made to Freedom Pay and then transferred by us to your nominated bank account and/or applied against the Balance Owing.  You agree to, and you appoint us as your attorney to, sign such documents and provide such confirmation and instructions as we may reasonably require, or determine are required, to give effect this clause and facilitate the payment of a refund to Freedom Pay.
4. ou acknowledge and agree that Freedom Pay will only be required to transfer to you (and/or apply against the Balance Owing) the amount of the Purchase Price paid by the Merchant to Freedom Pay and if this amount is less than the amount agreed between you and the Merchant you:
   1. must seek the balance from the Merchant; and
   2. hold Freedom Pay harmless in respect of any such shortfall.

7. What you can do if you are in financial difficulty
If you are having trouble, or think you may in the future have trouble, meeting your obligations under this Agreement, please contact us on 1300 261 641 so we can work with you to try to help you.

8. General matters and assignment to third party

8.1 Rights, liability and assignment

1. We may exercise a right or remedy under this Agreement (in addition to other rights and remedies provided by law independently of it or by any other Payment Plan) or give or refuse our consent in any way we consider appropriate including by imposing reasonable conditions.
2. If we do not exercise a right or remedy fully or at a given time, we can still exercise it later.
3. We are not liable for loss caused by the exercise or attempted exercise of, failure to exercise, or delay in exercising, a right or remedy other than if caused by our negligence.
4. We may assign or transfer our rights under this Agreement to a third party without your consent in which case we will notify you of such an assignment. Any person to whom our rights are transferred will have the same rights that we do under this Agreement. Your rights and obligations will not be affected by an assignment of our rights to a third party. 
5. You agree that we may disclose any information or documents we consider reasonably necessary to help us exercise this right including personal creditworthiness information to persons involved in providing funds by way of securitisation. 
6. Your rights are personal to you and may not be assigned without our written consent, with such consent not to be unreasonably withheld. 
7. You agree that we may appoint third party collections agencies to collect any amounts owing to us under this Agreement without your consent. 
8. We may also make any reasonable change to any provision of this Agreement to comply with any law or regulation, and we will give you written notice of such a change.
9. Subject to any statutory right of set-off which we cannot exclude by agreement (such as under consumer protection legislation), you must pay all amounts due under this Agreement in full without setting off amounts you believe we owe you and without counter-claiming amounts from us.
10. This Agreement is governed by the laws of Queensland, Australia. 

8.2 Notices - Your email address and mobile phone number

1. We may use, and you consent to us using, your email address as part of our secure log in or authorisation process, or to advise you of changes to your Account or a Payment Plan and to communicate with you in connection with your Account, any Payment Plan or this Agreement. You need to keep your email address current and to update your email address you may contact us on 1300 261 641.  We will send you notices under this Agreement to your email address.
2. Because we use, and you consent to us using, electronic communication, we will use your mobile phone number to send you any information you need to know.  So we can communicate with you, you must keep your mobile phone number provided to us up to date. You may update your mobile phone number by contacting us on 1300 261 641 or logging into your Account accessible through our website. If you do not provide us with your current mobile phone number you may not be notified of important information relevant to your Account, Payment Plan, or this Agreement.
3. You agree that you will notify us of any change to your contact details as previously advised to us within 5 Business Days of the change taking effect.

8.3 Transactions and records

1. You acknowledge at the date of this Agreement that:
   1. you are at least 18 years old;
   2. you are capable of entering into this Agreement and performing your obligations under it;
   3. you are a permanent resident of Australia; and
   4. you are not an undischarged bankrupt or have reason to believe you are or may become Insolvent.

8.4 Your authority to operate the bank account

1. You agree that you are the authorised signatory of the bank or credit card account to be used for the repayments required to be made under this Agreement.

8.5 Who we can take instructions from in relation to this Agreement and your Payment Plan

1. We can only take instructions in relation to this Agreement and any associated Payment Plans from you.  Should you wish to nominate a third party to act on your behalf, we must receive this request from you in writing. 

9. Privacy (including consents)

9.1 Collection and disclosure of personal information

1. The clauses below set out:
   1. consents that you give us in relation to your personal information; and
   2. important information about our collection, use, disclosure and management of your personal information.
2. Our “Privacy Policy” and Credit Reporting Policy documents, available at www.freedomleisure.com.au (select ‘Policies’ then ‘Privacy Policy’) provide more details about how we manage your personal information, including your credit information and credit eligibility information as well as the collection, use, and disclosure of your personal information.
3. We ordinarily collect personal information about you for the following purposes, and, to the extent not already authorised by law, you agree to us using and disclosing that information for these purposes:
   1. assessing and processing existing or future application(s) for your Payment Plan(s) or other goods or services, managing your Account or other products, responding to your questions, performing our obligations in relation to any Payment Amount;
   2. either us, the Merchant or any other service provider appointed by us contacting you about your Payment Plan(s) or regarding promotions, campaigns or for any other special offer/s or promotions;
   3. protecting us and our assets (including against fraud) and selling our assets (including by assigning any debts); and
   4. complying with laws that may require us to collect your personal information including but not limited to: Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth) (for example, for identity verification), the National Consumer Credit Protection Act 2009 (Cth), the Financial Sector (Collection of Data) Act 2001 (Cth) and the Corporations Act 2001 (Cth), as well as other legislation (for example, requiring us to maintain client and transaction records, and to make reports and provide other information to regulators such as ASIC) and the Taxation Administration Act, the Income Tax Assessment Act and other taxation laws (for example, to comply with information requests issued by the Commissioner of Taxation).
4. You authorise us (or any third parties providing services on behalf of us) to disclose to third parties, to the extent required by any applicable laws or regulations, any information in relation to you, your Payment Plans, or your Account. In addition, you acknowledge that we reserve the right to report any negative activity on your Account (including late payments, missed payments, defaults or chargebacks) to credit reporting agencies.
5. We may collect your personal information from third parties where it is unreasonable or impracticable to collect it directly from you. These third parties include the Merchant, other credit providers, any of your employers, former employers, referees, banks, landlords, accountants, lawyers and financial advisers, service providers to us (including introducers, private investigators, professional advisers), professional organisations, internet sources, public and subscriber only databases and government authorities.
6. If you do not provide your personal information to us, we may not be able to approve your application and/or we may not be able to deal with future requests or queries from you in connection with your Account and any Payment Plan.
7. You agree that we can disclose your personal information (including, where permitted to do so under the Privacy Act, your credit information and credit eligibility information) for the purposes described above to any of our related bodies corporate, our assignees or potential assignees, the Merchant, our service providers, credit providers, your assignees or proposed assignees, debt collection agencies, our banks and financial advisers, our lawyers, accountants and other professional advisers, any suppliers or contractors to us who may need to have access to your personal information for the purpose of providing services to us or you, any person specifically authorised by you in writing and any person as permitted or required by law.

9.2 We may disclose your personal information to overseas recipients

1. Some of the organisations to whom we may disclose your personal information (including your credit information or credit eligibility information) will be located overseas. The countries in which overseas recipients are likely to be located currently include the Philippines (for an updated list of countries from time to time please see our Privacy Policy available on our website).
2. You acknowledge that by consenting to us disclosing your personal information to overseas recipients, Australian Privacy Principle (“APP”) 8.1 will not apply to the disclosure (which means that we will not be obliged under the Privacy Act to take reasonable steps to ensure that an overseas recipient does not breach the APPs and we will not be liable under the Privacy Act if the recipient does not act consistently with the APPs). By applying for this product you consent to such disclosures.

9.3 Marketing products and services to you

1. You agree to us using and disclosing your personal information (including your telephone number, regardless of whether it is listed on the Do Not Call Register and your email or other electronic addresses) to provide you with information about our other products and services and the products and services offered by our partners, our related companies or suppliers. This includes, without limitation, communicating with you via emails, text messages or other electronic messages (without an unsubscribe facility). This agreement operates indefinitely. However, you can tell us that you no longer wish us to use or disclose your personal information for these purposes by contacting us on 1300 261 641.

9.4 Accessing and correcting your personal information

1. You have rights to request access to and correction of personal information that we hold about you (including credit information and credit eligibility information). Our Privacy Policy contains details about how you can make such requests as well as details about how you can make a complaint if you think there has been a breach of the Privacy Act and how we will deal with such a complaint.

10. Direct Debit Service Agreement

10.1 Direct debit service agreement

1. This is your Direct Debit Service Agreement with Freedom Leisure Finance Pty Ltd (ACN 115 087 771). It explains what your obligations are when undertaking a direct debit arrangement with us. It also details what our obligations are to you as your direct debit provider. This forms part of any Payment Plan(s) and should be read together with any Direct Debit Request authorisation provided when seeking to use your Account to purchase a Product.

10.2 Debiting your account

1. By providing bank account details to make the Direct Debit Request (DDR) in a Payment Plan, you authorise us to debit funds from the account nominated in your Account including any fees or charges specified in clause 4 and other amounts due under this Agreement. You should refer to the DDR and this Agreement for the terms of the agreement between you and us.
2. We will only arrange for funds to be debited from your account nominated in your Account as authorised in a DDR or as amended by notice from you (including by providing updated details in a subsequent Payment Plan).
3. If any repayment or other amount falls due on a day that is not a Business Day, we may direct your financial institution to debit the account nominated in your Account on the following Business Day. If you are unsure about which day your account has or will be debited you should ask your financial institution.
4. You must keep your DDR in effect until your Account is closed by us, the Total Amount Owing is repaid, or a new DDR has been established.

10.3 Amendments by us

1. If you are in Default, we may vary any details of a DDR or this clause 10 (other than the account number) to enable us to recover funds which are due and payable by you to us under this Agreement.

10.4 Amendments by you

1. Subject to clauses 10.1(a) to 10.2(d), you may change, stop or defer a debit payment, or terminate a DDR by arranging it through your financial institution, which is required to act promptly on your instructions.

10.5 Your obligations

1. It is your responsibility to ensure that there are sufficient clear funds available in the account nominated in your Account to allow a debit payment to be made in accordance with the applicable DDR.
2. If there are insufficient funds in the account nominated in your Account to meet a debit payment:
   1. you may be charged a fee and/or interest by your financial institution;
   2. you may also incur fees or charges imposed or incurred by us; and
   3. you must arrange for the debit payment to be made by another method or arrange for sufficient funds to be in the account stated in the relevant Payment Plan by an agreed time so that we can process the debit payment.
3. You should check the statement for the account nominated in your Account to verify that amounts debited to the account are correct.

10.6 Errors or Queries

1. If you believe that there has been an error in debiting your account you should notify us directly on 1300 261 641 and confirm that notice in writing with us as soon as possible so that we can resolve your query more quickly.  Alternatively, you can take it up directly with your financial institution.
2. If we conclude as a result of our investigations that the account nominated in your Account has been incorrectly debited we will respond to your query by arranging for your financial institution to adjust your account (including any interest and penalties charged by your bank) accordingly. We will also notify you in writing of the amount by which your account has been adjusted.
3. If we conclude that the account nominated in your Account has not been incorrectly debited we will respond to your query by providing you with reasons and any evidence for this finding in writing.

10.7 Accounts

1. You should check:
   1. with your financial institution whether direct debiting is available from the account nominated in your Account as direct debiting is not available on all accounts offered by financial institutions;
   2. your account details which you have provided to us are correct by checking them against a recent account statement; and
   3. with your financial institution before completing the DDR if you have any queries about how to complete the DDR.

11. Meaning of words and interpretation

11.1 Meaning of words

In this Agreement:

Account means the account we establish in your name for recording all transactions in connection with this Agreement.

Agreement means these terms and conditions and any Payment Plan created pursuant to this Agreement.

Balance Owing means, at any time, the difference between all amounts credited and all amounts debited to your Account at that time.  When this amount is to be calculated at the end of a day, it includes all debits and credits assigned to that day.

Business Day means a day other than a Saturday or Sunday or a public holiday listed throughout Australia.

Costs includes charges and expenses and costs in connection with legal and other advisers.

DDR has the meaning given in clause 10.1(a).

Default has the meaning given in clause 5(a).

Direct Debit Service Agreement means the agreement set out in clause 10.

Insolvent means being an insolvent under administration or insolvent or having a controller appointed (such as defined in the Corporations Act 2001 (Cth)) such as being bankrupt, in receivership, in receivership and management, in liquidation, under administration, wound up, subject to any arrangement, assignment or composition, protected from creditors under any statute, dissolved (other than to carry out a reconstruction while solvent) or otherwise unable to pay debts when they fall due.

Merchant means the seller of a Product pursuant to a Sale Agreement to whom, or on whose behalf, a Payment Amount is paid on your behalf as identified in a Payment Plan.

Monthly Maintenance Fee has the meaning set out in clause 4.

Outstanding Payment Amount means any Payment Amount which has not been repaid in full.

Payment Amount means the amount provided or paid by us on your behalf under this Agreement, to the Merchant for a Purchase.

Payment Plan means the terms of payment, including the number and time of repayments, in respect of a Payment Amount for a Product created pursuant to this Agreement.

Privacy Policy means our privacy policy available at www.freedomleisure.com.au.

Product means the product(s) supplied by the Merchant to you pursuant to a Sale Agreement.

Purchase means the purchase of a Product authorised by you and accepted and authorised by us under this Agreement.

Purchase Price means the amount payable for a Product pursuant to a Sale Agreement between you and a Merchant.

Sale Agreement means an agreement for the sale of the Product from the Merchant to you including any terms and conditions of that sale.

Start Date means the Start Date specified in a Payment Plan for a particular Purchase.

Total Amount Owing means the Balance Owing on your Account, plus all other amounts which you must pay under this Agreement but which have not been debited to your Account.

Unauthorised means without your knowledge or consent.

‘We’ means Freedom Leisure Finance Pty Ltd ACN 115 087 771 and its successors and assigns and ’our’ and ‘us’ have a corresponding meaning.

‘You’ means the person or persons named in the Payment Plan you submit to us and ‘your’ has a corresponding meaning.  If there is more than one person named, each of you is liable for all obligations under this Agreement individually and jointly. It includes your successors and assigns.

11.1 Interpretation

In this Agreement:

1. a reference to a document includes any variation or replacement of it;
2. a reference to a law includes any common law, principles of equity, and laws made by parliament (and laws made by parliament include regulations and other instruments under them, and consolidations, amendments, re-enactments or replacements of them)
3. a reference to any thing includes the whole and each part of it;
4. the word 'include' in any form is not a word of limitation; and
5. where a word or expression is given a particular meaning, other parts of speech and grammatical forms of that word or expression have a corresponding meaning.