Last Update: 14 January 2021

1. Introduction

   1. These are the terms and conditions that apply to your access to, and use of the Laybuy payment platform ("Platform") which is operated in Australia by Laybuy Australia Pty Ltd ACN 640 349 971 ("Laybuy" , "we", "us" and "our"), at WeWork, Level 3 100 Harris Street, Pyrmont NSW 2009, under licence from Laybuy Holdings Limited ("Laybuy BNPL Terms"). If you established your Laybuy account on or before 17 July 2020, by proceeding with a further purchase on the Platform after that date, you agree to a novation of your agreement to Laybuy Australia Pty Ltd.
   2. References to “we”, “us” and “our” includes our officers, employees, contractors, agents, successors and assignees. Accordingly, please read these Laybuy BNPL Terms carefully.
   3. Where we refer to "you" or "your" in these Laybuy BNPL Terms, we mean any individual using the Platform.
   4. We may offer you access to your Laybuy account and the Platform generally by the following access methods:     (a)  using the internet (including through the use of a mobile application), which is subject to the Laybuy BNPL Terms; and    (b)  using your Laybuy card, which is subject to:         i.  these Laybuy BNPL Terms; and         ii.  the "Laybuy Cardholder Terms of Use" which can be access at https://www.laybuy.com/au/card-terms These are known as 'Access Methods'. Some or all of the Access Methods may not always be available. You can contact us to check their availability.
   5. By accessing and using the Platform, you acknowledge you have read, and agree to comply with, these Laybuy BNPL Terms (and the Laybuy Cardholder Terms of Use, if you use the Laybuy card). If you do not wish to be bound by these Laybuy BNPL Terms, do not download, access or use the Platform or the Laybuy card.

   6. Acting reasonably, we reserve the right to amend these Laybuy BNPL Terms, in whole or in part, for any reason and without your consent including for one or more of the following reasons:

      1. to comply with any change or anticipated change in any relevant law, code of practice, guidance or general banking practice;
      2. to reflect any decision of a court, ombudsman or regulator;
      3. to reflect a change in our systems or procedures, for security reasons;
      4. as a result of changed circumstances (including by adding benefits or new features);
      5. to respond proportionality to changes in the cost of providing the Platform; or
      6. to make them clearer

      For any changes that are materially adverse, we will notify You at least 20 days before any changes to these Laybuy BNPL Terms take effect.

   7. Any amendments we make do not change the Laybuy BNPL Terms of a purchase made prior to the change using the Platform and the payment of the Purchase Price that applied at the time of the purchase. The date at the beginning of these Laybuy BNPL Terms will be updated to the date such amendments take effect. You are responsible for ensuring you are familiar with the latest Laybuy BNPL Terms. Your continued use of the Platform after any amendments are made will be confirmation of your acceptance of these Laybuy BNPL Terms as amended.

2. Purchasing goods and services on your behalf 1. The Platform permits you to purchase certain goods and services made available by:      (a)  retailers approved by us ("Merchants") over the internet securely; and/or      (b)  Merchants, at an outlet within Australia that has contactless payments available, by using your Laybuy card. Some of the goods and/or services a Merchant sells may not be able to be purchased using the Platform. The Merchant will advise you if this is the case. 2. When using the Platform in a store or online: 1. you instruct us to purchase a product or service you identify with the Platform ("Product" or "Service", as the case may be), on your behalf, from a Merchant; 2. we will pay the full amount of the purchase price for the Product or Service inclusive of GST, delivery costs, booking fees, service charges and other fees the Merchant may impose ("Purchase Price") to the Merchant; 3. all transactions on the Platform will be processed in Australian dollars and all references to currency in these Laybuy BNPL Terms are to Australian dollars; 4. where applicable, the Merchant will arrange for delivery of the Product or Service to you (with delivery times dependent on the Merchant and that Merchant's delivery terms and conditions), and in the case of the Product it will become your exclusive property on delivery; 5. the Merchant will pay us, or we will deduct, a commission fee for assisting to procure the sale of the Product or Service to you; and 6. you unconditionally, and irrevocably, agree to pay to us the Purchase Price on the terms set out in these Laybuy BNPL Terms.

3. Fees and payment

   1. Subject to clause 3.2, you must pay us the Purchase Price for each Product or Service you purchase using the Platform in six equal weekly instalments. The first instalment will be due and payable at the time you purchase the Product or Service. The second instalment will be due and payable on the date that is one week after the date of purchase (at the latest, although you may choose a sooner date if we make this option available to you). Each of the four subsequent instalments will be due and payable on the same day in the weeks following. For example, if you purchase a Product or Service on a Friday, and the Purchase Price is $120.00, on the date of purchase you will pay $20.00 and on each Friday in the following five weeks you will be required to pay us an instalment amount of $20.00.
   2. Each purchase of Products or Services through our Platform is subject to our approval in addition to any transaction limit ("Your Limit") assigned to you from time to time. If:
      1. the Purchase Price for the Product or Service; or
      2. the Purchase Price and the aggregate of all other amounts you owe us in respect of the Products and Services, is in excess of Your Limit, the first instalment of the Purchase Price that is due and payable in accordance with clause 3.1 will be for the amount by which the Purchase Price exceeds Your Limit and the remainder of the Purchase Price owed will be divided and paid over the remaining five instalment payments. For example, if Your Limit is $120.00 and the Purchase Price is $200.00, on the date of purchase you will pay $80.00 (being the excess above Your Limit) and on each of the five remaining instalment dates you will pay $24.00.
   3. You will not be charged any interest on the amounts you are required to pay to us.
   4. By using the Platform, you grant us an authority to charge all amounts owed by you to us in connection with any Product or Service you purchase, or otherwise under these Laybuy BNPL Terms (including default fees), to your nominated debit card or credit card. Your payment method will need to be approved by us before you will be able to purchase any Products or Services using the Platform.
   5. You will be responsible for ensuring you have sufficient available funds on your nominated debit card or sufficient available credit on your credit card, depending on the payment method we register on your account, to enable us to collect all amounts owed by you to us in connection with any Product or Service you purchase, or otherwise, under these Laybuy BNPL Terms. You will have sole responsibility for paying all bank and/or card charges associated with any payment method we approve for you.
   6. At any time, you can pay some, or all, of the Purchase Price to us in advance of the due date of the instalment payments referred to in clause 3.1, without penalty. If you make any such early payment, all subsequent instalment payments will be adjusted accordingly so the same amount is due for payment on each subsequent instalment date (unless you prepay the full amount of the Purchase Price in which case there will be no more instalments).
   7. The Purchase Price will include goods and services tax ("GST") chargeable under A New Tax System (Goods and Services Tax) Act 1999 (as may be amended, consolidated, re-enacted or replaced at any time).
   8. If for any reason whatsoever you fail to, or are unable to, make an instalment payment on its due date, you will have a further 24 hours to pay. If you fail pay within 24 hours of the due date, we will charge you a default fee of $10.00. If you do not rectify your default by making the missed instalment payment within the next seven days, we will charge you a further default fee of $10. As a result, you could be charged, in aggregate, $20 for each instalment payment you miss or which is paid late up to a maximum charge of $40 for each purchase you make (and by using the Platform, you agree these default fees are fair and reasonable given the time and cost we will incur in dealing with your default). We may also arrange for a debt collection agency to collect the amount you owe us from you.
   9. You may download the Platform for free (although you will need an internet connection to download, access and use the Platform and you may incur charges or fees from your mobile network provider associated with the same).
   10. You will not, for any reason, set off, deduct or withhold any amount in respect of payments due to us under these Laybuy BNPL Terms except to the extent any law requires that you have such a right.

4. Your account, log in and security

   1. When you first use the Platform, you will be required to provide certain log in information (including a user name and password) that will enable you to access the Platform each time you wish to use the Platform to purchase products or services. You must keep your log in information secure to avoid use of the Platform using your log in details by other persons.
   2. You must not permit use of the Platform using your log in details by any other person. If the Platform is or was used by any other person with your log in details, or if you know or suspect any other person has obtained your log in details, you must immediately notify us at [email protected].
   3. You must exercise every possible care to ensure the safety of your computer or mobile device by taking all reasonable care to prevent loss, theft and unauthorised or fraudulent use.
   4. If the Platform is used by another person to purchase a Product or Service, you will be personally liable to pay the Purchase Price of that Product or Service to us in accordance with these Laybuy BNPL Terms.
   5. When making transactions with Laybuy, card details are transmitted through a secure server using a PCI-DSS Level 1 gateway provider. Card data is not hosted by Laybuy during or after processing.

5. Dealings with Merchants

   1. As a consumer, under law you have certain rights and protections in respect of goods or services you purchase using the Platform including under the consumer guarantee provisions of the Australian Consumer Law, being Schedule 2 to the Competition and Consumer Act 2010.
   2. If you have any complaint, concern or other issue with a Product or Service, you must address these directly with the Merchant (in accordance with the Merchant's policy for the same). The Merchant may have a return policy on their website.
   3. If, in accordance with the Merchant's consent and/or instructions, you return the Product to the Merchant or the Service is to be delivered to you again, any arrangements for the supply of a replacement good or service should be made with the Merchant. In such circumstances, your obligation to pay the Purchase Price to us continues unaffected.
   4. If:     (a)  the Product is returned to the Merchant and not replaced; or     (b)  the Service is not provided or not provided to your reasonable satisfaction; and     (c)  the Merchant agrees you should receive some or all your money back, your obligation to make the instalment payments referred to in clause 3.1 or clause 3.2 (as applicable) will continue unaffected until the Merchant advises us:         i.  the Product has been returned and not replaced; or        ii.  the Service has not been provided or not provided to your reasonable satisfaction; and         iii.  the Merchant has refunded the Purchase Price into our bank account in cleared and immediately available funds, then we will stop charging instalment payments to your debit or credit card (as the case may be) for the relevant Product or Service and arrange to refund all amounts (if any) you have paid to us in respect of the Purchase Price for the relevant Product or Service (other than default fees).
   5. If circumstances arise under the Australian Consumer Law where you obtain a refund of all or part of the Purchase Price directly from the Merchant, then your obligation to pay the Purchase Price to us continues unaffected until we have received the Purchase Price.
   6. If you are not satisfied with the way in which the Merchant deals with your concern or issue, or your concern or issue is not resolved or otherwise addressed by the Merchant to your satisfaction, you should notify us in writing at [email protected] including details of your complaint. While we will use reasonable endeavours to assist you with your subsequent dealings with the Merchant, until the concern or issue is resolved your obligation to make the instalment payments for the Purchase Price referred to in clause 3.1 will continue unchanged.
   7. We provide no guarantee or other assurances in respect of the timing of any refunds as timing will be influenced by the actions of the relevant Merchant and the bank being used.

6. Your covenants and representations

   1. You agree not to use the Platform:
      1. to purchase any Product or Service where payment of the Purchase Price to us in accordance with these Laybuy BNPL Terms will, or is likely to, cause you any financial hardship;
      2. for any unlawful, fraudulent or improper purpose;
      3. in any manner which does, or may, damage, disable, overburden or otherwise impair the Platform or interfere with any other person's use and enjoyment of the Platform;
      4. to introduce any harmful information or materials (which includes any spyware, viruses, worms, trojan horses, harmful scripts or codes or any other damaging items which could interfere with the Platform, our software, hardware, network or computer system); and/or
      5. if you are aware your computer or mobile device has such harmful information or materials installed on it.
   2. You will not remove any restrictions imposed by us, the software or the operating system, that delivers the Platform.
   3. You represent and warrant that:
      1. you are 18 years of age or older;
      2. the information you provide to us when you access the Platform for the first time, and any subsequent information you provide to us, will be true, complete and accurate in all respects; and
      3. if any of your circumstances change resulting in any information you have previously provided to us no longer being true, complete and accurate in all respects you will immediately notify us by email at [email protected]

7. Intellectual Property

   1. For the purposes of these Laybuy BNPL Terms, "Intellectual Property" means all rights to, and interests in, any copyright, trade mark, patent, design, know-how, trade secret, domain name, rights in software, rights in inventions, and any other proprietary right or form of intellectual property (whether protectable by registration or not).
   2. All Intellectual Property in the Platform is owned by us or our licensors (as applicable) and none of the contents of the Platform may be used, reproduced, copied or distributed, in any way whatsoever, other than for the purpose of using the Platform for your own personal use.
   3. You must not copy, reverse engineer, decompile, disassemble, attempt to derive the source code of, modify, create derivative works of, re-post to other applications or websites, change, or otherwise distribute, license, sub-licence or transfer in any form any aspect of the Platform.
   4. If any person claims your use of the Platform infringes a person's Intellectual Property, you must notify us and allow us to deal with that claim which may, at our absolute discretion, include us, amongst other things, settling or modifying the Platform to the extent necessary to avoid or minimise the claim.

8. Upgrades and maintenance

   1. We may, from time to time, issue upgraded versions of the Platform, and/or may automatically upgrade the version of the Platform you are using, without notice to you. If you use the Platform, you will be deemed to have consented to any such upgrades.
   2. You acknowledge the Platform may be unavailable from time to time due to errors, defects, maintenance or events that may be outside of our control.

9. Termination

   1. You may stop using the Platform at any time. If you also wish to terminate or close your account with us, you will need to email this request to us at [email protected].
   2. We may block, suspend, restrict or otherwise terminate your access to, or use of, the Platform, at any time, without notice or liability to you.
   3. If your access to, or use of, the Platform is blocked, suspended, restricted or terminated, for any reason, this will be without prejudice to our rights and remedies to recover any amounts due and owing by you.
   4. We reserve the right to alter, suspend or terminate access to or use of the Platform, or any particular functionality of the Platform, either temporarily or permanently at any time for any reason, and at our sole discretion, without notice or liability to you.

10. Limitation of liability and indemnity

    1. To the maximum extent permitted by law and subject to your rights and our obligations under the Australian Consumer Law:
       1. any and all liability and responsibility we may have to you, or any other person, under or connection with your access to, or use of, the Platform, these Laybuy BNPL Terms and/or your inability to use the Platform, regardless of whether such liability arises in contract, tort (including negligence), equity, breach of statutory duty or otherwise, is limited to a maximum amount of the Purchase Price of the Product or Service; and
       2. our liability and responsibility is excluded for any indirect or consequential loss or damage of any kind (including, but not limited to, any loss of opportunity, anticipated savings or unauthorised use).
    2. Without limiting our rights and remedies, you agree to indemnify us, as a continuing indemnity, against all costs, losses, liabilities (including legal and other professional expenses on a full indemnity basis), claims, demands, damages, fines and penalties (including any consequential or indirect losses) we may incur or otherwise suffer arising directly or indirectly out of, or in connection with, your access to, or use of, the Platform, except where such loss arises from the mistake, fraud, negligence or wilful misconduct of us, our employees or our agents.

11. Disclaimers

    1. The Platform is provided on an "as is" and on an "as available" basis.
    2. We are not responsible for any:
       1. corruption or loss of data or other content which you or any other person may experience; or
       2. software, network, computer system, hardware, devices or other equipment that may be harmed,
as a result of, or otherwise in connection with, your use of the Platform.
    3. We do not represent or warrant that:
       1. the Platform will function uninterrupted, that it will be error-free, that defects will be corrected or that the Platform, or the server that makes it available, will be free of any virus or other harmful elements; or
       2. the Platform will be compatible with any particular computer or mobile device.

12. Anti-Money Laundering and Counter- Terrorism Financing Terrorism Act 2006 and Privacy

    1. We are a "reporting entity" for the purposes of the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (AML/CTF Act). Accordingly, we are required by the AML/CTF Act to collect certain personal information about you (including, but not limited to, satisfactory evidence to enable us to verify your identity). If we require information to satisfy our legal obligations, you must provide the information we request.
    2. We also collect your personal information from you, to provide you with the products or services you have applied for. We may also collect personal information about your computer, mobile device, systems and application software to facilitate the provision of upgrades, product support and other services related to the Platform, including any of its features or tools. This may include, without limitation, collecting location information concerning you if your mobile device has a global positing system and the device is set to allow your location to be ascertained.
    3. If we do not collect this information or your identification information required to comply with the AML/CTF Act, we will be unable to provide you with our products or services.
    4. By using the Platform you consent to us collecting your personal information and using it for any purpose associated with your use of the Platform and/or our delivery of the Platform to you including (but not limited to):
       1. ensuring we comply with our obligations under the AML/CTF Act and other laws;
       2. for administrative and credit assessment purposes;
       3. aggregating your information with the information of others for the purposes of assessing the types of persons using the Platform and determining Platform usage trends; and
       4. telling you about products and services offered by us or our affiliate companies (unless you tell us not to); and
       5. sending you push notifications, text messages and/or emails about upgrades, maintenance, features, services or other information relating to your access to, or use of, the Platform (including promotional and marketing information concerning the Platform and/or the products and services of the Merchants).
    5. If you have provided your personal information to us or any of our related companies in connection with the operation of the Platform, you consent to us using that information to comply with our obligations under the AML/CTF Act.
    6. You authorise us (or any agents or contractors providing services on our behalf) to disclose your personal information to other persons to the extent required by law, which may include us reporting any credit account information and default by you these Laybuy BNPL Terms and/or for credit assessment purposes.
    7. In accordance with the terms of the Privacy Act 1988 (Privacy Act), we may disclose your personal information (i.e. your name, and contact details and credit related information to debt collection agencies, merchants, mailing houses and financial institutions as necessary to manage activity on your account and to operate the Platform. We may also disclose your personal information to our related companies in Australia, New Zealand and the United Kingdom.
    8. Our Privacy Policy, available at www.laybuy.com/au/privacy or by contacting us on [email protected], contains important information about how you may access and seek correction of personal information we hold, or to raise a complaint if your information is mishandled by us.
    9. Our Privacy Policy also contains our Credit Reporting Policy which sets out important information about how we handle your credit-related personal information, how you may access and seek correction of your credit-related personal information, how you can raise a complaint about us if we have mishandled your credit-related information in contravention of the Chapter IIIA of the Privacy Act 1988 (Cth) or the Privacy (Credit Reporting) Code 2014 and how we will manage your complaint.
    10. Our Statement of Notifiable Matters
        1. We may disclose your credit-related personal information to our credit reporting body (CRB) (i.e. to obtain a credit report to assess your credit worthiness). Our CRB's details are below:
        • Name: ⠀Experian
        • Website: ⠀www.experian.com.au
        • Post: ⠀Consumer Support Team, GPO Box 1969 North Sydney NSW 2060
        2. You should note that: 

• the CRB may include the information in its reports to other credit providers, to assist them to assess your creditworthiness; - if you fail to meet your payment obligations in relation to consumer credit or commit a serious credit infringement, we may be entitled to disclose this to the CRB; - you have the right to access, seek correction or raise a complaint about the information we hold about you;
• you have the right to request the CRB to not use your credit reporting information for the purposes of pre-screening of direct marketing by a credit provider; and - you have the right to request the CRB not to use or disclose credit reporting information you, if you reasonably believe that you have been, or are likely to be, a victim of fraud.

13. General

    1. We will communicate with you through text messages or by email to your email address and you consent to us communicating using the contact details you provide to us.
    2. The provisions of clauses 6, 7, 9, 10, 11, 12, 13.2, 13.4, 13.5, 13.6 and 13.7, and any other clauses that are, by their nature, intended to survive termination, will survive the termination of your access to, or use of, the Platform.
    3. You may not, directly or indirectly, assign, transfer or otherwise dispose of any of your rights or interests in, or obligations or liabilities under, these Laybuy BNPL Terms. We may assign our rights and interests, or novate our agreement with you, at any time without your consent or notice to you (“Transfer”), provided a Transfer does not materially detrimentally affect your rights under these Laybuy BNPL Terms.
    4. No waiver of any breach or failure to enforce any provision, of these Laybuy BNPL Terms at any time by us will in any way affect, limit or waive our right to enforce and compel strict compliance with the provisions of these Laybuy BNPL Terms.
    5. If any part of these Laybuy BNPL Terms is held by any court or administrative body of competent jurisdiction to be illegal, void or unenforceable such determination will not impair the enforceability of the remaining parts of these Laybuy BNPL Terms, which will remain in full force and effect.
    6. These Laybuy BNPL Terms, and any amendments made by us, constitute the entire agreement and understanding (express and implied) between you and us in connection with your access to, and use of, the Platform.
    7. The use of the Platform in Australia is governed by, and will be construed in accordance with, the laws of New South Wales and Australia and the courts of New South Wales and Australia will have non-exclusive jurisdiction.