STANO MCLENNAN PTY LTD ACN 662 030 006 – TERMS AND CONDITIONS
Last updated: 9th May 2023
1. DEFINITIONS
1.1 Account means a User account on the Platform.
1.2 Bond means the sum required by the Lender in relation to the Lend Agreement.
1.3 Claim means any allegation, debt, Liability, proceeding, claim, action, notice threatening claim, demand, litigation, judgement, suit howsoever arising and whether present or future, fixed or unascertained, actual or contingent, whether at law, in equity, under statute or otherwise.
1.4 Commencement Date means the date the User accepts these T&Cs.
1.5 Confidential Information includes:
a) Any information specifically designated as confidential;
b) Information that, by its very nature, might reasonably be understood to be confidential or to have been disclosed in confidence;
c) Technical information concerning the products or the materials used in the provision of the Service or a Party’s business;
d) Information that would be of commercial value to a competitor of a Party, Related Bodies Corporate, other entities or other companies;
e) Information relating to any advice or other service a Party provides, has provided or will provide; f) Information about a Party’s financial performance;
g) Information relating to a Party’s financial or business affairs, including performance or profitability reports, Fees and quotes for the Service, and details of any transactions in which the Party is, has been, or may be involved;
h) Trade secrets;
i) User lists and User information;
j) Techniques, databases, policies and procedures;
k) Contractual, technical and production information including Lendy’s Data;
l) Plans, including marketing plans, business projections, business plans and business forecasts concerning a Party’s performance or likely future activity; and
m) Notes and developments regarding confidential information, precedents and all other records except for such information that:
i) Was rightfully in a Party’s possession and not subject to an obligation of confidentiality before the Commencement Date; or
ii) Is, or becomes, in the public domain, other than as a result of a breach of these T&Cs or of common law obligations.
1.6 Data means any content, material, data, information, records, account details, names, contact information and statistics including photographs, videos, audio, descriptions, correspondence, credit card details and the like. 1.7 Expenses means any additional expenses incurred by Lendy beyond the Fees, including legal or collection agency fees.
1.8 Fees means the fee payable for the Service, being the Hosting Fee payable by the Lender and Service Fee payable by the Lendee.
1.9 Force Majeure Event means any event beyond Lendy’s control, including:
a) Fire, explosion, flood, earthquake, cyclone or natural disaster;
b) Any third party’s variation, suspension, cancellation or failure to provide information, goods or services used by Lendy in the provision of the Services;
c) Epidemic, pandemic, disease or virus;
d) War, revolution, outbreak of hostilities, riot, civil disturbance, acts of terrorism or any other unlawful act against public order or authority;
e) Theft, malicious damage, strikes, lock-outs, or industry action of any kind;
f) Power failure, failure of telecommunications lines, failure or breakdown of equipment, plant machinery or vehicles;
g) Cyber attack or technological disruption; or
h) The illness, disablement or death of an employee essential to the performance of the Services. 1.10 Goods means the goods listed on the Platform for hire.
1.11 GST means goods and services tax under the A New Tax System (Goods and Service Tax) Act 1999 and regulations thereunder as in force from time to time (“GST Law”) and terms used have meanings as defined in the GST Law.
1.12 Hosting Fee means the fee payable by the Lender for the Service, being 10% of the Payment. 1.13 Intellectual Property means all intellectual property including developments, discoveries, innovations, inventions, procedures, trade secrets, copyrights, Confidential Information, trademarks, whether present or future, registered or unregistered.
1.14 Intellectual Property Rights means all intellectual property rights, including all copyright, patents, trade marks, design rights, trade secrets, domain names, know how and other rights of a similar nature, whether registrable or not and whether registered or not, whether present or future, and any applications for registration or rights to make such an application.
1.15 Lend Agreement means the agreement between the Lender and Lendee to hire particular Goods for the Lend
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STANO MCLENNAN PTY LTD ACN 662 030 006 – TERMS AND CONDITIONS
Period in exchange for the Payment.
1.16 Lend Period means the period of time for which the Lendee hires the Goods.
1.17 Lendee means the User searching for and hiring the Goods on the Platform.
1.18 Lender means the User listing the Goods for hire on the Platform.
1.19 Lendy means Stano Mclennan Pty Ltd ACN 662 030 006.
1.20 Lendy Cover means Lendy’s protection policy for accidental damage to, theft of, or loss of Goods during the Lend Period, for up to a maximum of $2,000.00, not including general wear and tear.
1.21 Liability means all liabilities, Loss, Claim, damages, outgoings, costs and expenses of whatever description and whether present, unascertained, contingent or prospective.
1.22 Listing means the listing created by the Lender on the Platform detailing the Goods, the Bond (if applicable), the Booking Period and the Payment.
1.23 Loss means all loss, damage, expense, costs (including legal fees on a full indemnity basis and expenses of whatsoever nature or description) and debts including any liability for consequential or indirect losses, economic losses or loss of profits, use, opportunity, production, interest, earnings or profit.
1.24 Payment means the sum of the payment requested by the Lender and to be paid by the Lendee in relation to the Lend Agreement.
1.25 Permitted Use means the sole use of accessing the Platform for the Service.
1.26 Platform means the technical platforms and services hosting the application and website known as ‘Lendy’ and providing the Service.
1.27 Privacy Policy means the privacy policy accessible on the Platform.
1.28 Service means access to the Platform and the service of holding the Payment in anticipation of completion of the Lend Agreement.
1.29 Service Fee means the fee payable by the Lendee for the Service, being 10% of the Payment. 1.30 Term means the period commencing on the Commencement Date and expiring on the completion of the Service or termination of these T&Cs, whichever is earlier.
1.31 T&Cs means this document and any schedules, annexures or amendments thereto. 1.32 User Data means Data owned by the User and provided to Lendy via the Platform or other means in the course of Lendy providing the Services.
1.33 User means the users, whether individuals or entities, accessing the Platform.
2. ACCEPTANCE
2.1 These T&Cs are between the User and Lendy for the provision of the Service.
2.2 These T&Cs are not a hire agreement between the Lender and the Lendee and do not govern the Lend Agreement.
2.3 The User may accept these T&Cs by any one of the following ways:
a) In writing via clicking ‘I accept’ to the Terms and Conditions on the Platform; or
b) By conduct via creating an Account.
2.4 The User’s acceptance of these T&Cs may be rescinded in accordance with these T&Cs or by way of written notice to info@hellolendy.com.au.
2.5 These T&Cs will commence on the Commencement Date and continue for the Term. 3. LENDY
3.1 Lendy is hereby engaged as an agent for the User only for the limited activity of releasing the Payment to the Lender, less the Fees and Expenses, once the Lender and Lendee agree the Lend Agreement is complete. 3.2 Lendy does not own, control, offer or manage any Listing or Goods.
3.3 Lendy does not create the Listing, or the Data contained in the Listing. The Lender is responsible for the creation of the Listing as well as ensuring the Listing remains accurate and up-to-date.
3.4 Lendy does not provide any guarantees or warranties about any User or the accuracy of the Data on the Platform, including the Goods or its suitability for the Lendee’s intended use.
3.5 Nothing in these T&Cs is intended to oblige Lendy to collect debtors or investigate disputes and Lendy is not a general agent, mediator, insurer, property or real estate broker.
3.6 The User must promptly notify Lendy via email if there is an issue with any matter discussed in these T&Cs, whether with the Service, Listing, Lend Agreement or otherwise (‘an Issue’).
3.7 Once Lendy is notified of an Issue, Lendy will determine in its discretion whether to release the Payment to the respective User, less the Fees and Expenses, or whether to hold the Payment until the parties reach a unanimous agreement or Lendy is notified of the decision of a competent authority such as the Court.
3.8 The parties agree that if a User does not respond to Lendy’s request for further information within 14 days, Lendy may in its sole discretion release the Payment to a respective User, less the Fees and Expenses. 3.9 There is no obligation on Lendy to release the Payment while an Issue remains unresolved to Lendy’s satisfaction.
3.10 Any money held by Lendy as deposited by the User will not be invested and will not accrue interest in favour of the User.
4. SERVICE
4.1 Lendy shall provide the Service to the User in consideration for the User paying the Fees as follows: a) The User will create an Account on the Platform;
b) The User will accept these T&Cs via the Platform;
c) The Lender will create the Listing on the Platform;
d) The Lendee will select the Goods via the Platform;
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e) The Lendee shall deposit the Payment plus the Hosting Fee to Lendy via a third party; f) The Users shall complete the Lend Agreement within the Lend Period;
g) The Users shall confirm the Lend Agreement is completed on the Platform; and
h) Lendy shall release the Payment, less the Fees and Expenses, to the Lender.
4.2 The parties agree each and every instance whereby a User utilises the Platform for a Service will be treated as a separate Service under these T&Cs.
4.3 Lendy will endeavour to meet any agreed deadlines however these are not guaranteed and are estimates only. 4.4 Lendy may cancel or vary the delivery deadlines at any time before the Service is provided or finalised by written notice.
4.5 Lendy reserves the right to amend, change, remove or otherwise deal with any Listing in any manner it deems necessary.
4.6 Should Lendy fail to provide the Service:
a) The parties are not entitled to treat these T&Cs as repudiated, waived or void; and
b) Lendy will negotiate an agreed outcome with the User; and
c) Damages or compensation will be limited to the sum of the Fees.
4.7 The User acknowledges Lendy may from time to time engage third parties on terms as determined by Lendy in its sole discretion and Lendy may rely on Data generated by third parties to provide the Service. 5. LICENCE
5.1 Lendy has the right to use the Platform and provide the Service.
5.2 Subject to the payment of all money that becomes due, Lendy hereby grants the User a revocable, a non transferrable, non-exclusive licence to access the Platform in accordance with policies and guidelines as issued by Lendy from time to time and use the Platform and for the Permitted Use for the Term as set out in these T&Cs.
5.3 The licence pursuant to this Clause shall not entitle the User to reproduce, copy and/or use the Intellectual Property, Confidential Information, or the Platform for any use beyond the Permitted Use, commercial or otherwise.
5.4 By providing Data, in whatever form and through whatever means, the User hereby grants Lendy a non exclusive, royalty-free, perpetual, sub-licensable and transferable licence to copy, modify, distribute, publish and otherwise exploit, that Data, without limitation.
6. FEES AND PAYMENT
6.1 The Lender and Lendee agree the Fees shall be paid to Lendy immediately upon completion of the Lend Agreement and hereby authorise Lendy to deduct the Fees and any Expenses from the Payment without notice. 6.2 A User may request an Invoice for the Fees and Lendy shall provide an Invoice within a reasonable time. 6.3 The User shall complete, and hereby authorises Lendy to complete on its behalf, any documents necessary or desirable to enable the User to make payment of the Fees together with any applicable GST via direct deposit, credit card or debit card.
6.4 If the User fails to make payment of any part of the Fees, the payment will become overdue and without prejudice to Lendy’s other rights and remedies under these T&Cs or at law, Lendy will be entitled to suspend or cancel all or part of the Service and/or terminate these T&Cs effective immediately.
6.5 If the Payment is not received by Lendy for any reason whatsoever, the Users hereby release Lendy from any Liability, Claim or Loss arising either directly or indirectly therefrom.
6.6 The User agrees it is responsible for providing accurate and up-to-date account details on the Platform. 6.7 The User is not entitled to set-off against the Fees any amounts due from Lendy.
6.8 If the User breaches these T&Cs, the breaching User agrees to pay all Loss including any legal fees on a full indemnity basis incurred by Lendy in its attempts to recover a debt owing to it.
6.9 Recovery costs shall be payable by the User in relation to the debt claimed by Lendy. 6.10 Lendy reserves the right to change the Fees at any time by way of written notice to the User. Fee changes will not impact Lend Agreements made prior to the effective date of the fee change.
6.11 The Parties agree that this Clause shall survive the expiry or termination of these T&Cs. 7. LENDY’S OBLIGATIONS
7.1 Skill and Care: In performing the Service, Lendy shall comply with lawful requirements and exercise the reasonable skill, care and diligence to be expected of a qualified and experienced member of Lendy’s profession providing a service of a similar scope and character.
7.2 Complaint Handling: Lendy shall investigate any complaint about the Service or the Platform promptly, fairly and effectively and will inform the User of how the complaint will be handled including expected timeframes for a response. The parties agree the dispute resolution process contained in these T&Cs applies once a party has notified the other of a dispute in accordance with these T&Cs.
7.3 Breaches: Lendy will cooperate with legal authorities in the investigation of any suspected or alleged crime or civil wrongdoing by the User or any third party and the User consents to the release of information, confidential or otherwise, as required by law.
7.4 Lendy Cover: Lendy offers Lendy Cover to Lenders who meet the eligibility criteria set out on the Platform. Lendy will determine on a case-by-case basis and its sole discretion if a Lender is eligible to claim Lendy Cover in relation to a Lend Agreement.
7.5 User Conduct: Lendy does not and cannot control Users’ conduct. Lendy has the right, but does not have any obligation, to monitor the use of the Platform and verify Data provided by Users.
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STANO MCLENNAN PTY LTD ACN 662 030 006 – TERMS AND CONDITIONS
7.6 Listing Placement: Lendy does not guarantee any particular placement or position of the Listing on the Platform, unless specified by Lendy in writing.
7.7 Refunds and Cancellations: The parties must adhere to the Cancellation Policy and Refund Policy available on the Platform. The parties agree Lendy has absolute discretion in relation to such policies and may provide refunds at its discretion as determined by Lendy on a case-by-case basis.
8. USER’S OBLIGATIONS
8.1 Information: The User shall supply to Lendy, without charge and in such time so as not to delay or disrupt the performance of the Service, all necessary and relevant Data as requested by Lendy from time to time. The User warrants that Data provided by the User is accurate, correct and up-to-date.
8.2 Decisions: The User shall give decisions, instructions, consents or approvals on or to all matters properly referred to the User by Lendy in such reasonable time so as not to delay or disrupt the performance of the Service.
8.3 Access: The User shall only access the Service and use the Platform in accordance with policies and guidelines as issued by Lendy from time to time via the Platform.
8.4 Use: The User shall only use the Service for the Permitted Use. The User shall not use or permit the Service to be used by third parties or for any unlawful or malicious purpose.
8.5 Restrictions: The User shall not interfere with Lendy’s performance of the Service.
8.6 Reporting: The User agrees to report any breaches of these T&Cs or any matter which is reasonably likely to become a breach of these T&Cs immediately by way of written notice to Lendy.
8.7 Lender: If the User is, at any time, a Lender, the User hereby agrees to Schedule 1. 8.8 Lendee: If the User is, at any time, a Lendee, the User hereby agrees to Schedule 2. 8.9 Reviews: Users may review other Users and Listings on the Platform. The User agrees to adhere to all policies
and guidelines for conduct. The User consents to Lendy removing, editing or otherwise dealing with any reviews on the Platform in any manner deemed necessary as determined in Lendy’s sole discretion on a case-by-case basis.
9. MAINTENANCE
9.1 Lendy shall from time-to-time undertake maintenance and/or updates of the Platform and will endeavour to provide notice to the User at least 24 hours prior to undertaking such updates or maintenance that are likely to be disruptive to the User’s use of the Platform.
9.2 It is the User’s responsibility to ensure it can access the Platform and/or the Service. 9.3 Lendy provides no warranty as to the Platform’s suitability for the User’s equipment. 10. USER DATA
Hosting
10.1 The User acknowledges and agrees that Lendy shall engage third party data hosts with servers to host the User Data.
Ownership
10.2 Ownership of the User Data shall remain with the User.
10.3 By accepting these T&Cs, the User hereby grants a non-exclusive, revocable and non-lapsing licence to Lendy to process User Data uploaded to the Service and use such User Data for research, marketing, advertising, selling the User Data to third parties and the like.
Accuracy
10.4 The User is solely responsible for ensuring the legality, integrity, reliability, accuracy and quality of the User Data.
Security and Backup
10.5 Lendy shall take reasonable technical measures to prevent unauthorised or unlawful disclosure of User Data or its accidental loss, destruction or damage during the performance of the Service.
10.6 The User agrees to create back-ups of all User Data prior to uploading the User Data to the Service. 10.7 The User undertakes to follow all security measures required by Lendy as notified in writing from time to time. 10.8 The User shall conduct its own investigations into and to put in place all appropriate security measures to
ensure the security of its own IT infrastructure, including but not limited to anti-virus software, storage of sensitive data and the protection of passwords and usernames and the private information of the User and other third parties.
11. INTELLECTUAL PROPERTY
11.1 All Intellectual Property Rights and proprietary rights in the Service, the Platform, and the Intellectual Property shall remain vested in Lendy or a third party as determined in Lendy’s sole discretion and at no times shall ownership transfer to the User.
11.2 The User shall not directly or indirectly do anything that would or might invalidate or put in dispute Lendy's title in the Service, the Platform and the Intellectual Property.
11.3 The Intellectual Property rights in the User Data remain vested in the User.
11.4 Any Intellectual Property which is created as a result of improvements or modifications to the Service, vests in Lendy immediately upon its creation and the User assigns all right, title and interest in such Intellectual Property to Lendy and will promptly do any further acts or execute any documents required by Lendy to effect such assignment.
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STANO MCLENNAN PTY LTD ACN 662 030 006 – TERMS AND CONDITIONS
11.5 The User acknowledges and agrees that any Intellectual Property which is created in accordance with Clause 11.4 may be used in any manner by Lendy in its sole discretion, including in the provision of services to other Users.
12. RISK AND TITLE
12.1 The parties agree that:
a) Lendy has the right to use the Platform and provide the Service and title does not pass to the User in any circumstances; and
b) All risk of Loss or Claim arising from the use of the Service and the Platform passes to the User upon provision of the Service, whether the provision of the Service is in instalments or otherwise. 13. DEFAULT AND TERMINATION
13.1 A default shall occur immediately upon any of the following (‘Default’):
a) The Lender or Lendee breaches or terminates the Lend Agreement;
b) The User or Lendy breaches these T&Cs;
c) The User uses the Service or permits the Service to be used for any use other than the Permitted Use; d) Any money payable to Lendy becomes overdue;
e) The User becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
f) The User dies, loses capacity, becomes bankrupt, executes a personal insolvency agreement or ceases to carry on business; or
g) A receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the User or any asset of the User or Lendy is notified that such an appointment is being considered. 13.2 Upon a Default and without prejudice to a party’s other remedies under these T&Cs or at law, the non-defaulting party shall be entitled to terminate, cancel or suspend all or any part of the Service or these T&Cs effective immediately.
13.3 Either party may terminate these T&Cs at any time as determined necessary in its sole discretion by way of written notice to the parties effective immediately.
13.4 On expiration of the Term or the termination of these T&Cs:
a) The User must promptly return all Intellectual Property and Confidential Information to Lendy; b) The Fees for any part of the Service provided to the date of termination shall immediately become due and payable to Lendy;
c) Lendy may in its sole discretion elect to provide the User with a refund of all or part of any Payment, Expenses or Fees; and
d) Lendy may in any manner deal with, including remove or amend, the User’s Listing and Account. 13.5 Termination shall be without prejudice to any claim either party may have against the other in respect of any breach of these T&Cs which occurred prior to the date of termination.
13.6 This Clause shall survive the termination or expiry of these T&Cs.
14. INDEMNITY AND RELEASE
Release
14.1 The User must perform its obligations under these T&Cs at its sole risk.
14.2 Lendy will not be liable to the User for any Liability, Loss, harm, injury, disease, illness or death sustained by any person or for any loss or damage to property directly or indirectly howsoever caused, and the User indemnifies Lendy from any Liability in respect of any such matter.
14.3 The User assumes all responsibility for any Loss or damage suffered by the User or Lendy whatsoever arising out of the use of the Goods, including user input or operation error or negligence, viruses howsoever contracted, server fault, electrical malfunction or power surges, malfunction or failure (‘Malfunction’) and shall hold Lendy completely harmless for any Loss suffered as a direct or indirect result of the Malfunction, except if such Loss or damage was solely caused by a negligent act or omission of Lendy.
14.4 The User acknowledges and agrees Lendy shall at no time be Liable for any and all Loss or Claim arising out of: a) A Force Majeure Event;
b) Any act, omission or default by the User;
c) The Lend Agreement;
d) Any delay, negligence, act, advice, matter or thing done or permitted or omitted to be done by Lendy; e) The provision of services by third parties, including third parties engaged in relation to a data hosting and Payment;
to the extent permitted at law and the User hereby releases Lendy from such Liability.
14.5 The User agrees:
a) All guarantees, conditions, and warranties, expressed or implied, by law, custom or otherwise are excluded to the extent permitted by law; and
b) To the extent that Lendy breaches these T&Cs or any condition or warranty implied herein which cannot be excluded or modified, the liability of Lendy for damages shall not exceed the total Fees payable for the Term. Indemnity
14.6 The User hereby agrees to indemnify Lendy against all Claims and all Loss as elected by Lendy in writing without prior notice from time to time on a case-by-case basis, howsoever suffered by Lendy or that Lendy may suffer or potentially suffer arising out of:
a) Any Expense;
b) The Lendee’s reliance on the Lender’s Data;
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c) A User’s conduct;
d) Acts, omissions, delays or defaults of the User or parties engaged by the User other than Lendy; e) Use of the Service for any use beyond the Permitted Use;
f) Infringement of any third party’s Intellectual Property Rights when processing the User Data; g) The User’s failure to back up the User Data or put in place appropriate security measures; h) The User’s failure to ensure the legality, integrity, reliability, accuracy or quality of the User Data; i) The User failing to notify Lendy in writing of any issue, delay, problem or failure within the Service or with the Goods;
j) Acts, omissions, delays or defaults of third parties (whether negligent or otherwise), including third parties in relation to data hosting;
k) The User’s breach of any Law (including civil and criminal penalties arising from such breach); l) Lendy delaying the provision of the Service; or
m) The User’s incompetence, misrepresentation, unlawful activity or carelessness (including the provision of inaccurate or incomplete information or instructions);
howsoever caused indirectly or directly to the extent available at law, except where such Loss or Claim is solely caused by the negligent act or omission of Lendy.
Process
14.7 The parties agree that Lendy may call upon the indemnity and/or release contained in this Clause at any time and the User must immediately make good any demand or request by Lendy pursuant to this Clause including without limitation payment of Lendy’s legal fees on a full indemnity basis.
14.8 The parties agree:
a) This Clause is an Essential Term of these T&Cs;
b) This Clause shall survive the termination or end of these T&Cs;
c) Lendy is not required to provide notice in relation to this Clause; and
d) The dispute resolution provisions contained in these T&Cs do not apply to this Clause. 15. DISPUTE RESOLUTION
15.1 A party must not start arbitration, court proceedings or any other proceedings, except interlocutory relief, in respect of any dispute, controversy or claim arising out of or in relation to these T&Cs (“Dispute”), unless that party has complied with this Clause.
15.2 A party claiming that a Dispute has arisen (“Complainant”) must notify the other party to the Dispute (“Respondent”) of:
a) The nature of the Dispute;
b) What outcome the Complainant wants; and
c) What action the Complainant thinks will settle the Dispute (“Dispute Notice”).
15.3 Once a Dispute Notice has been given, the parties must use their reasonable endeavours to agree how to resolve the Dispute.
15.4 If the parties concerned cannot agree how to resolve the Dispute within 10 Business Days of the Dispute Notice being given, each party may take its own advice on the best manner in which the Dispute is to be settled. 15.5 The User acknowledges and agrees that where the User breaches the warranties, representations, indemnities, covenants, agreements, undertakings and obligations ("agreed terms") contained herein, damages may not be an adequate remedy and the agreed terms will be enforceable by injunction, order for specific performance or such other equitable relief as a court of competent jurisdiction may see fit.
15.6 In the event of a Dispute, the User hereby undertakes to make prompt payment of any sum of funds not under dispute.
16. AUSTRALIAN CONSUMER LAW
16.1 This Clause applies if the Competition and Consumer Act 2010 (Cth) (‘the Act’) is deemed to apply. 16.2 The parties agree:
a) Notwithstanding anything contained in these T&Cs, Lendy acknowledges that the agreement and relationship between the User and Lendy may be subject to the Competition and Consumer Act 2010 (Cth) (‘the Act’);
b) The provisions of these T&Cs, where in conflict with the Act, shall be read down to the extent required by operation of the provisions of Act;
c) The Service may come with guarantees that cannot be excluded under the Australian Consumer Law and Lendy does not purport to exclude or attempt to exclude such guarantees; and
d) The provisions of the Act, including any statutory obligations applicable to Lendy shall only be enforceable by the User in relation to the Service or any part of the Service purchased by the User as a consumer pursuant to the Act.
16.3 The Service shall be rendered with all adequate due care and skill, as required by the Act and shall be fit for the purposes disclosed by the User to Lendy and delivered within a reasonable time.
16.4 The Service comes with guarantees that cannot be excluded under the Australian Consumer Law. For major failures with the Service, the User is entitled:
a) To cancel these T&Cs; and
b) To a refund for the unused portion of the Fees, or to compensation for its reduced value. 16.5 The User is also entitled to be compensated for any other reasonably foreseeable loss or damage.
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16.6 If the failure does not amount to a major failure, the User is entitled to have problems with the Service rectified in a reasonable time and, if this is not done, to cancel these T&Cs and obtain a refund for the unused portion of the Agreement.
17. PRIVACY
17.1 The User confirms that they have reviewed Lendy’s Privacy Policy and agrees to and accepts the terms of the Privacy Policy.
17.2 The User acknowledges and agrees that the Privacy Policy may be updated by Lendy from time to time and such updated will take immediate effect.
17.3 The User acknowledges and agrees that Lendy shall store the User’s personal information and User Data with a third party host.
17.4 The User agrees that personal information collected from or about the User, may be used and disclosed by Lendy for any of the following purposes:
a) To perform the Service and Lendy’s obligations under these T&Cs;
b) To use de-identified data to perform trend analysis and other aggregation of data across Lendy’s User base to enhance Lendy’s services and consultation offering;
c) Any purpose detailed in the Privacy Policy; and
d) To disclose information as required by law.
17.5 The User expressly consents to Lendy sending to the User by phone, email, SMS/MMS, fax and post, marketing and advertising information and materials in relation to Lendy and its related entities’ products, services, promotions, offers and events. The User may opt out of receiving such information by written notice to Lendy.
17.6 Lendy shall only use the User’s personal information to the extent allowed under the Privacy Act 1988 (Cth). 18. MISCELLANEOUS
18.1 These T&Cs shall be binding upon the heirs, successors, substitutes, executors, administrators, representatives, employees, agents, or assigns of the parties.
18.2 Relationship: Lendy undertakes to provide the Service as an independent contractor. The relationship between the parties shall not be deemed to be that of employer/employee, principal/customer (within the common law definition), joint venture, partnership, general agent or otherwise. The User must not purport to act in any way on behalf of Lendy or in any way purport to bind Lendy.
18.3 Costs: Each party shall pay their own costs associated with these T&Cs, unless expressly stated otherwise herein.
18.4 Multiple Party: If a party consists of more than one person, these T&Cs binds each of them separately, any two or more of them jointly and an obligation, representation or warranty in favour of more than one person is for the benefit of them separately and jointly.
18.5 Statutes: The provisions of any Statute which alters the effect of any provision of these T&Cs shall not apply to these T&Cs so far as this lawfully can be done.
17.7 Severance: If anything in these T&Cs is invalid, unenforceable, illegal or void then it is severed, and the rest of these T&Cs remains in force.
18.6 No Waiver: A party’s failure or delay to exercise a power or right does not operate as a waiver of that power or right. No waiver is effective unless it is in writing. The waiver of a power or right is effective only in the specific instance and for the specific purpose for which it was given.
18.7 Amendment: Lendy reserves the right to review and amend these T&Cs from time to time. If Lendy makes material changes to these T&Cs, Lendy will post the revised T&Cs on the Platform and update the “Last Updated” date at the top of these T&Cs. Lendy will also provide the User with notice of any material changes by email at least 30 days before the date they become effective. If the User disagrees with the revised T&Cs, the User may terminate these T&Cs immediately by way of written notice. If the User does not terminate these T&Cs before the date the revised T&Cs become effective, the User’s continued access to or use of the Platform will constitute acceptance of the revised T&Cs.
18.8 Assignment: These T&Cs are personal to the User and Lendy and cannot be assigned. 18.9 Entire Agreement: These T&Cs contain the entire agreement and understanding between the parties on the subject matter of these T&Cs and supersedes all prior discussions and agreements. The User acknowledges none of Lendy’s agents or representatives are authorised to make any representations, statements, conditions or agreements not expressed by the manager of Lendy in writing nor is Lendy bound by any such unauthorised statements.
18.10 Good Faith: Each party agrees that it will do all things and execute all documents necessary or desirable to give full effect to these T&Cs even though not specifically provided for.
18.11 Business Days: If anything is required to be done on a day that is not a Business Day, then it must be done instead on the next Business Day where “Business Day” means a week day other than a statewide public holiday.
18.12 Counterparts: These T&Cs may be executed in any number of counterparts with the same effect as if the signatures to each counterpart were on the same instrument.
18.13 Warranty of Authority: Each person signing these T&Cs as an Officer, Attorney, trustee or other representative of a party, assures each other party that he/she possesses unrestricted authority to execute these T&Cs in that capacity at the time of signing.
18.14 Contra Proferentum: No rule of construction of documents shall apply to the disadvantage of a party on the basis that the party put forward these T&Cs.
18.15 Governing Law: These T&Cs are governed by the laws of Queensland and the parties irrevocably submit to
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STANO MCLENNAN PTY LTD ACN 662 030 006 – TERMS AND CONDITIONS
the exclusive jurisdiction of Queensland courts in respect of any action or proceeding concerning these T&Cs. 18.16 Further assurances: Each party to these T&Cs will, at its own expense and without additional consideration, upon receipt of a request by another party promptly do such further acts and will execute, acknowledge, deliver and record such other documents and instruments as may be reasonably necessary or desirable from time to time to give full effect to these T&Cs and any transaction contemplated by this agreement. 18.17 Time of Essence: Time shall be of the essence of the User's obligations hereunder unless otherwise agreed in writing by Lendy.
18.18 Bargaining Power: The parties acknowledge that prior to making these T&Cs:
a) Each party could negotiate for the alteration of or rejection of any of the provisions of these T&Cs; and b) There was no material inequality in bargaining power between the parties; and
c) Each party had consulted or had the opportunity to consult independent legal and or financial advisers. 18.19 Electronic: Both parties acknowledge and agree that the original of these T&Cs may be in email form and agree to accept an email copy as the original and binding Agreement. Although these T&Cs is not conditional upon the subsequent execution of an original and duplicate by the parties, either party may request the other party to execute an original and duplicate of these T&Cs in which case the parties agree to do so. 18.20 Notices: Notices or other communication including without limitation any request, demand, consent or approval under these T&Cs must be in writing and may be given by a party or that party’s solicitor or authorised agent. The parties agree:
a) Posted notices will be treated as given two Business Days after posting.
b) Electronic notices will be treated as delivered on the day it is sent or if sent after 5:00pm, then it is regarded as delivered at 9:00am on the following Business Day;
c) Notices are effectively delivered if in writing and;
i. Delivered or posted to the party or its solicitor; or
ii. Sent to the facsimile number or email address of the party or its solicitor.
19. INTERPRETATION
19.1 In these T&Cs, unless the context otherwise requires:
a) A reference to any legislation or legislative provision any statutory modification or re-enactment of, or legislative provision substituted for, and any subordinate legislation issued under, that legislation or legislative provision;
b) The singular includes the plural and vice versa;
c) A reference to a party, individual or person includes a corporation, Company, joint venture, association, authority, trust, state or government and vice versa;
d) A reference to any gender includes all genders;
e) A reference to a recital, clause or Schedule, annexure is to be a recital, clause, Schedule or annexure of or to these T&Cs;
f) A reference to ‘the parties’ is a reference to all parties of these T&Cs;
g) A reference to any party includes and these T&Cs is binding upon that party’s assigns, agents, substitutes, employees, sub-contractors, directors, secretaries, trustees, Related Bodies Corporate, executors, administrators, attorneys, successors or heirs;
h) A recital, Schedule, annexure or a description of the parties forms part of these T&Cs; i) A reference to any agreement or document is to that agreement or document (and any of its provisions) as amended, novated, supplemented or replaced from time to time;
j) Where an expression is defined, another part of speech or grammatical form of that expression has a corresponding meaning;
k) A reference to ‘dollars’ or ‘$’ is to Australian currency;
l) An obligation, representation or warranty in favour of more than one person is for the benefit of them separately and jointly;
m) Specifying anything after the words ‘including’ or similar expressions does not limit what else is included unless express wording to the contrary; and
n) A party which is a trustee is bound both personally and in its capacity as a trustee.
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STANO MCLENNAN PTY LTD ACN 662 030 006 – TERMS AND CONDITIONS
Schedule 1: Lender
The Lender hereby warrants and agrees:
1.1 Lendy is not a party to the Lend Agreement.
1.2 It guarantees the payment of the Hosting Fee to Lendy.
1.3 These T&Cs will supersede any terms of the Lend Agreement that are inconsistent with or seek to amend these T&Cs.
1.4 Cancellations must be made in accordance with the Cancellation Policy on the Platform. 1.5 Refunds will only be provided at Lendy’s discretion in accordance with the Cancellation Policy and Refund Policy on the Platform.
1.6 When it accepts a lend request, or receives confirmation through the Platform, it is:
a. Entering into the Lend Agreement directly with the Lendee, and is responsible for adhering to the terms of the Listing and the Lend Agreement;
b. Agreeing to pay the Fees and Expenses;
c. Agreeing that Lendy may deduct amounts owed by the Lender from the Payment.
1.7 It owns the Goods and/or has complete authority to list the Goods for hire.
1.8 It is solely responsible for conducting due diligence investigations on the Lendee as it deems necessary and prudent.
1.9 It must ensure the Goods are fit for hire and meet the requirements of Australian Consumer Law. 1.10 It is responsible for understanding and complying with all laws, rules, regulations and contracts with third parties that apply to the Listing, the Lend Agreement and the Goods.
1.11 It may be eligible for Lendy Cover and must meet the eligibility criteria (available on the Platform). 1.12 It has access to and has reviewed the policies, guidelines and resources available on the Platform. 1.13 It is responsible for keeping the Listing up-to-date and accurate at all times.
1.14 It is responsible for obtaining appropriate insurance for the Goods.
1.15 It may only maintain one Listing per Good for hire.
1.16 It owns and/or has the authority to provide its Data to Lendy.
1.17 It is responsible and liable if any of the Data violates or infringes the intellectual property or privacy rights of any third party.
1.18 It is not operating a business and is using the Platform for private hire arrangements only. 1.19 It has one Account and will immediately notify Lendy if it suspects the Account has been interfered with, hacked or accessed by someone other than the Lender.
1.20 The Listing is accurate, complete, detailed and up-to-date to the best of its knowledge and belief. 1.21 The Listing does not misrepresent the condition of the Goods.
1.22 It regularly reviews the Listing to ensure it is accurate and up-to-date.
1.23 It has reached a decision about the calculation and sum of the Payment after its reasonable due diligence enquiries and consideration of the Fees.
1.24 It will negotiate and communicate with the Lendee in a timely and considerate manner. 1.25 It authorises Lendy to disclose its contact details to the Lendee.
1.26 It will ensure the Goods are:
a. Maintained and repaired in accordance with any manufacturer’s guidelines and industry standards; b. Compliant with any requirements at law; and
c. Meet the description of the performance, condition and quality of the Goods on the Listing.
Schedule 2: Lendee
The Lendee hereby warrants and agrees:
1.1 Lendy is not a party to the Lend Agreement.
1.2 It guarantees the payment of the Service Fee to Lendy.
1.3 These T&Cs will supersede any terms of the Lend Agreement that are inconsistent with or seek to amend these T&Cs.
1.4 Cancellations must be made in accordance with the Cancellation Policy on the Platform. 1.5 Refunds will only be provided at Lendy’s discretion in accordance with the Cancellation Policy and Refund Policy on the Platform.
1.6 When it pays the Payment, or receives confirmation through the Platform, it is:
a. Entering into the Lend Agreement directly with the Lender, and is responsible for adhering to the terms of the Listing and Lend Agreement;
b. Agreeing to pay the Payment, including the Fees and Expenses, and Bond;
c. Agreeing that Lendy may deduct amounts owed to it from the Payment; and
d. Confirming it has read and agrees to the terms and conditions of the third party payment processor. 1.7 It is solely responsible for conducting due diligence investigations on the Lender and the Goods as it deems necessary and prudent.
1.8 It is responsible for understanding and complying with all laws, rules, regulations and contracts with third parties that apply to the Listing, the Lend Agreement and the Goods.
1.9 It has access to and has reviewed the policies, guidelines and resources available on the Platform. 1.10 It is responsible for obtaining appropriate insurance.
1.11 It owns and/or has the authority to provide its Data to Lendy.
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STANO MCLENNAN PTY LTD ACN 662 030 006 – TERMS AND CONDITIONS
1.12 It is responsible and liable if any of the Data violates or infringes the intellectual property or privacy rights of any third party.
1.13 It is hiring the Goods for personal use only.
1.14 It has one Account and will immediately notify Lendy if it suspects the Account has been interfered with, hacked or accessed by someone other than the Lendee.
1.15 It will negotiate and communicate with the Lender in a timely and considerate manner. 1.16 It is responsible for complying with all terms of the Lend Agreement, including adhering to the Lend Period, payment of the Bond and other conditions imposed by the Lender.
1.17 It is liable for its use of the Goods, including any damage, loss, injury or otherwise to the Lendee, property, third parties or the Goods.
1.18 That use of the Goods may carry inherent risks and it agrees that, to the maximum extent permitted by applicable law, it assumes the entire risk arising out of hiring the Goods.
1.19 It authorises Lendy to disclose its contact details to the Lender.
1.20 It is responsible for conducting all reasonable due diligence enquiries about whether the Goods are fit for its intended purpose.
1.21 During the Lend Period, it will:
a. Use the Goods for their intended purpose;
b. Use the Goods in line with the manufacturer’s guidelines and any additional conditions imposed by the Lender;
c. Take reasonable care of the Goods;
d. Not act recklessly or dangerously;
e. Not use the Goods for any illegal purpose;
f. Not modify, repair, change, alter, damage or otherwise deal with the Goods in any way that is inconsistent with the Lend Agreement;
g. Not deal with the Goods in any manner that results in the registration of or entitlement to register any interest in the Good under the Personal Property Securities Register Act 2009 (Cth); and
h. Immediately notify the Lender of any issues, faults or damage to the Goods.
1.22 At the end of the Lend Period, it will return the Goods to the Lender in the same condition except for fair wear and tear.