These Terms and Conditions relate to the services provided by XPayroll Pty Ltd ACN 670 859 695 as a Corporate Authorised Representative (CAR No.) of Yawnings Pty Ltd ACN 676 437 406, the holder of Australian Financial Services Licence (AFSL No. ).
Acceptance
By using the Platform, you expressly represent and warrant that you are agreeing to accept and comply with these Terms and Conditions.
You should read the entire Terms and Conditions carefully before you use the Platform or any of the Services.
Our Platform allows you to instruct us to buy Cryptocurrency on your behalf (Services).
Account
Eligibility and application
You must register for an Account to access the Platform and our Services. You can register for an Account via our Website.
To be eligible to open an Account with us, you must be an individual who is at least 18 years old.
The Platform is available only to residents located in Australia and is not intended to be offered or made available to any person who resides outside of Australia.
When applying for an Account, you must provide any information requested by us in order for us to provide complete access to the Platform and Services. You consent to your personal information being collected and used in accordance with YPay’s Privacy Policy. In addition, for the purposes of verifying your identity as part of our KYC process, you consent to:
the verification of your personal information with credit bureau header files (for verification only);
against records held by official document issuers or official record holders via third party systems; and
your verification agent(s) acting as a nominated intermediary in accordance with Privacy Act 1988 (Cth), to access your personal information which is held by third parties. You also consent to the use by third parties of the results of any verification checks on your identity for the purposes of monitoring and improving their verification services. [PA Comment: please ensure that the above covers all the consent requirements needed by the KYC that is being used by YPay]
Your Account will not be registered unless you complete our KYC process.
Subscription Fee
We may charge you a subscription fee to access our Platform and use our Services, which is subject to change from time to time as notified to you.
Changes
You may only make changes to your Account with our consent.
We may require you to comply with our security procedures before we consent to any changes.
Use
Your Account is to be used only by you in accordance with our policies and procedures.
You may not assign or otherwise transfer your Account to any other person or entity.
You are solely responsible for maintaining and protecting the confidentiality and security of your Account (including, but not limited to, your login credentials, two factor authentication device, linked email account, any bank account used in connection with your Account, phone number and any information you have provided in connection with your Account). We are not responsible or liable for any unauthorised access to, or use of, your Account (even where you may not be aware of such unauthorised access) except to the extent we have failed to take reasonable steps to secure the Platform.
Any fiat currency that is deposited into your Account without direction by you to buy Cryptocurrency on your behalf will be returned to your nominated bank account.
Risks
This clause outlines some of the risks (in no particular order of importance) that may be relevant to your use of the Platform and Services. This is not intended to be an exhaustive list of all relevant risks. You should consider all of the risks that may be relevant to your use of our Platform and Services and assess whether those risks are acceptable to you having regard to your financial circumstances and risk tolerance. If you are unsure, we strongly recommend that you do your own research and obtain your own financial, investment or professional advice.
The acquisition of Cryptocurrencies involves significant risk. Prices can and do fluctuate on any given day. Due to such price fluctuations, you may increase or lose value in your assets at any given moment. Any currency may be subject to large swings in value and may even become worthless. There is an inherent risk that losses will occur as a result of buying, selling or trading anything on a market.
Cryptocurrency trading also has special risks not generally shared with conventional currencies or goods or commodities in a market. Unlike most currencies, which are backed by governments or other legal entities, or by commodities such as gold or silver, Cryptocurrencies are a unique kind of currency, backed by technology and trust. There is no central bank that can take corrective measure to protect the value of Cryptocurrencies in a crisis or issue more currency. Instead, Cryptocurrencies are an as-yet autonomous and largely unregulated worldwide system of currency firms and individuals.
Due to the significant risks associated with acquiring Cryptocurrency, as well as the impact of technology and the international market, we do not warrant or guarantee that particular Cryptocurrencies will be available when you direct us to purchase Cryptocurrencies on your behalf.
You agree to indemnify and hold us harmless for any losses incurred as a result of technical failures, hacks, government or regulator intervention or any other issue that negatively impacts the underlying blockchain, smart contracts or network of a Cryptocurrency that you direct us to purchase via our Platform.
In the unlikely event we suffer a financial failure, we may not be able to settle our obligations under these Terms and Conditions as and when those obligations become due (including any indemnity). This is often referred to as counterparty risk and is something that exists in every contract or agreement.
There is also the risk that the regulatory landscape changes and any change may impact:
our ability to comply with these Terms and Conditions;
impact the value of your Cryptocurrencies;
require additional disclosures;
reduce the attractiveness of the Platform or Services; and
in some extreme cases, may mean:
the Platform or Services may need to be changed or withdrawn from the market; or
conditions need to be imposed on your access to our Platform or Services.
There may be additional risks that we have not foreseen or identified in our Terms and Conditions. You should consider all potential risks and you may wish to consult a professional adviser if you are unsure.
You should carefully assess whether your financial situation and tolerance for risk is suitable for buying cryptocurrencies.
We use our banking and payments providers in order to accept deposits from you as transferred on your behalf. Our banking providers do not transfer Cryptocurrencies, exchange Cryptocurrencies, or provide any services in connection with Cryptocurrencies.
Nothing on our Platform is intended to be, or should be taken as, legal, financial, business or taxation advice. You should seek your own legal, financial, business, tax and accounting advice in relation to any Cryptocurrency activities.
Limited Rights of Use
Rights
We grant to you a personal, non-exclusive, non-transferable, revocable and limited right to enter and use the Platform and our Services. We reserve all rights, title and interest not expressly granted under this licence to the fullest extent possible under law. Any unauthorised use of the Platform or Services which is not specifically permitted under these Terms and Conditions is strictly prohibited.
You acknowledge and agree that the Platform and the Services are our property and are protected by copyright, intellectual property and other applicable laws.
You agree not to modify the material on the Platform in any manner or form, or to use modified versions of the Platform or any materials on the Platform, including without limitation for the purpose of obtaining unauthorised access to the Platform.
You agree not to access our Services by any means other than through the Platform.
The trademarks, service marks, product names, company names and logos used on the Platform are either owned by us or are licenced or used with permission from a third party owner. Any third party trademark, service mark, product name, company or logo remains the property of the respective owner.
The software, text, images, graphics, data, charts, graphs, video, audio or other similar information used, displayed or otherwise made available on the Platform belong to us or is available to us under licence, unless otherwise stated. This information should not be copied, reproduced, modified, republished, uploaded, posted, transmitted, scraped, collected, or distributed in any form or by any means.
Maintaining Your Account
Obligations
By registering and holding an Account with us, you agree to:
maintain and promptly update any information in your Account to keep it current, accurate, and complete;
not to allow others to access your Account at any time;
not assist or allow others to obtain unauthorised access to any persons Account;
fully cooperate with us in investigating any improper, unlawful or fraudulent access to or use of your Account or any other Account;
contact us immediately if you believe that your Account may be subject to any unauthorised access or other type of fraudulent activity or security breach. Failure to notify us in a timely manner may limit the options available to us to protect your Account. We will not be responsible or liable for any loss you suffer from any unauthorised access, fraudulent activity or security breach, except to the extent that such loss arises from our failure to take reasonable steps to secure the Platform;
cooperate fully with us to investigate any suspected unlawful, fraudulent or improper activity on the Account;
not open more than one Account for yourself;
not use the Services or Platform for any unlawful, fraudulent or improper activity, including in a manner for which the Services or Platform have not been designed;
not use the service to engage in any criminal or restricted activities;
not cause or permit any damage to or otherwise interfere with our Platform, including the software and user interface by which you submit your information;
not take advantage of any technical or technological error, loophole or glitch on the Platform or Services and, where you do take such advantage, we reserve all our rights to recover any proceeds that you make (whether or not they remain in the Platform);
provide us with accurate, correct and valid information that we require and promptly notify us of any changes and you will not provide us with any false, inaccurate, misleading or deceptive information; or
if you provide any inaccurate or incomplete information to us, or we have reasonable grounds to suspect you have, we may suspend or terminate your Account.
The creation or use of Accounts without obtaining the prior express permission from us will result in the immediate suspension of all said Accounts, as well as all pending purchase/sale offers. Any attempt to do so or to assist others (Account holders or otherwise), or the distribution of instructions, software or tools for that purpose, will result in the Accounts of such Account holders being terminated. Termination is not the exclusive remedy for such a violation, and we may elect to take further action against you.
You are also responsible for maintaining the confidentiality and security of your Account information (including your password, [two factor authentication device], linked email account, phone number, bank account used in connection with your Account and any other information that is provided in connection with your Account), safeguarding your own cryptocurrencies, and for all activity including Transactions that are posted to your Account. If there is suspicious activity related to your Account, we may, but are not obligated, to request additional information from you, including authenticating documents, and to freeze any transactions pending our review. You are obligated to comply with these security requests, or we may terminate your Account. You are required to notify us immediately of any unauthorised use of your Account, log in credentials, [two factor authentication device], linked email account, bank account used in connection with your Account, any other information that is provided in connection with your Account or any other breach of security. If you violate these rules, your Account may be terminated and you indemnify us for any losses that we may suffer as a result of you failing to notify us of any unauthorised access, fraudulent activity or security breach. [PA Comment: will there be 2FA?]
Direction to Buy Cryptocurrency and Return of Remaining Fiat
You may direct us to buy any Cryptocurrency on your behalf through our Platform using fiat transferred to us in relation to your Account. You may change your directions at any time using the Platform. [PA Comment: please confirm how the user will direct YPay to purchase the crypto – will it be a standing direction or will they have to confirm every time YPay receives their pay? Also, will they set a dollar value of the amount of crypto they would like to buy, or will it be a percentage of their pay that they set through the Platform?]
We will purchase the Cryptocurrency for you at the price set by an independent Australian Cryptocurrency exchange at the time. The cryptocurrency exchange that we use will be published on our Platform and updated from time to time.
Once the purchase of Cryptocurrency has been executed, any Cryptocurrency bought on your behalf will be credited to your wallet address notified to us from time to time.
Once Cryptocurrency has been purchased on your behalf, all remaining fiat received will be transferred to your bank account nominated in the Platform from time to time.
You are solely responsible for ensuring that:
your wallet address is correct for any Cryptocurrency purchase, prior to submitting any request to purchase Cryptocurrency; and
your linked bank account details are correct for any payment of remaining fiat received by us to you.
We do not hold any Cryptocurrency purchased for you on our Platform.
As we do not hold any Cryptocurrency for you, we disclaim any and all liability for any loss resulting from you directing us to purchase Cryptocurrency on your behalf. Please make sure you read the risks in clause 2.5 in relation to the purchase of Cryptocurrency. If these risks are not acceptable to you, then you must not direct us to purchase Cryptocurrency for you.
All Cryptocurrency transactions are irrevocable once sent and we take no responsibility for verifying the wallet address you have provided to us. We are not able to cancel a purchase of a Cryptocurrency once it has been made.
Where the amount of fiat required to purchase the Cryptocurrency (as directed by you) exceeds the amount of fiat that has been transferred to us for the purchase of Cryptocurrency, we will only purchase Cryptocurrency up to the amount of the fiat received by us.
Termination
You may terminate these Terms and Conditions, and close your Account at any time, following settlement of any pending transactions.
You agree that we may, by giving notice, in our sole discretion terminate your access to the Platform, Services and Account, including without limitation to:
limit, suspend or terminate your access to the Services or Account;
prohibit or restrict access to the Platform and its content, services and tools;
delay or remove hosted content; and
take any technical or legal steps to keep you from accessing the Platform or Services if we are of the reasonable belief that you are:
creating legal liabilities;
infringing the intellectual property rights of us or any third parties; or
acting in a manner that is inconsistent with or in breach of these Terms and Conditions.
Additionally, we may, at our complete discretion, suspend, restrict, limit or terminate your Account for any reason, including without limitation, where:
there are attempts to gain unauthorised access to the Platform, Services or another user’s Account or providing assistance to others who are attempting to do so;
there are attempts to overcome software security features limiting the use of or protecting any content;
there are attempts to use the Platform, Service or Account to perform any illegal activities;
there is a violation of these Terms and Conditions, our Privacy Policy or our security procedures by you;
there is a failure to pay for any transaction;
there are unexpected technical or operational difficulties; or
there is a request of law enforcement or other government agencies, if deemed to be legitimate and compelling by us, acting in our sole discretion.
We also reserve the right to cancel unconfirmed Accounts or Accounts that have been inactive for a period of [6 months] or more, and/or to modify or discontinue our Platform or Service. You agree that we will not be liable to you or to any third party for termination, suspension or restriction of an Account or access to the Platform and Services in accordance with these Terms and Conditions. [PA Comment: Please confirm if 6 months of inactivity is a suitable timeframe]
Upon termination of your Account, to the extent that we hold any fiat currency on your behalf, we will transfer it as soon as practicable to the bank account last notified by you.
Availability
The Platform and Services are provided without warranty of any kind, whether express, implied, statutory or otherwise.
We do not represent that the Platform and Services will be available 100% of the time to meet your needs or requirements.
Our goal is to provide you with the Service and access to the Platform as soon as possible but there are no guarantees that access will be uninterrupted, secure, or that there will be no delays, failures, errors, omissions or loss of transmitted information.
We will use reasonable endeavours to ensure that the Platform and Services can normally be accessed by you in accordance with these Terms and Conditions.
You agree that we are not responsible for temporary interruptions in service due to failure beyond our control including, but not limited to, the failure of interconnecting operating systems, computer viruses, and forces of nature, labour disputes, pandemics and armed conflicts.
We may suspend use of the Platform or Services for maintenance and will make reasonable efforts to give you notice. You acknowledge and agree that this may not be possible in an emergency.
Market Volatility
If there is a period of high market volatility, high volume trades, rapid movements or illiquidity in the market, the market rate in which we are able to buy Cryptocurrency on your behalf may vary from the price indicated on our Platform or the cryptocurrency exchange that we use to purchase cryptocurrency on your behalf. [PA Comment: please confirm if the price will be indicated on the Platform] We are not liable for any price variation due to market volatility, market or technology disruptions, delays or any other matters caused by things that are outside of our control. You acknowledge and agree that we will process your transaction at the current price. In certain circumstances, we may decide not to execute a trade if the market rate significantly increases or decreases or in the event of a market disruption or an event which is outside of our control and, in such cases, we may cancel any order and return the funds to your nominated bank account. We will exercise reasonable care to notify you of these events and when you receive a notification you must check your Account and any pending or cancelled transactions.
Limitation of Liability
Limitation on Liability
To the maximum extent permitted by law, we will not be held liable for any fines, penalties, taxes (except GST) and any exemplary, aggravated or punitive damages, liquidated damages or any indirect or consequential loss (including but not limited to loss of profit, loss of revenue, loss of business, loss of opportunity, loss of data, loss of contract, loss of production and loss of Cryptocurrency).
Our total aggregate financial liability in respect of claims based on events arising out of or in connection with your use of the Platform or Services, whether in contract or tort (including negligence) or otherwise, will in no circumstances exceed the amount of the transaction(s) that are the subject of any claim less any fees that may be due and payable in respect of such transaction(s).
Indemnity
Indemnity
To the maximum extent permitted by law, you hereby agree to indemnify us, and our partners, officers, directors, employees and agents against any action, liability, cost, claim, demand, loss, damage, proceeding or expense (Loss) of any nature arising under tort, statute, equity, contract or some other cause of action that we suffer as a result of:
your negligent or wrongful acts or omissions;
your breach of any law, regulation or rules;
any damage that you cause to our Platform or any other user, person or entity; or
your violation of these Terms and Conditions or Privacy Policy,
but you will not be liable for any Loss to the extent such Loss is the direct result of our gross negligence or wrongful acts or omissions.
Privacy
When you use the Platform, we will collect personal information about you. Our Privacy Policy is available at [insert link] and Privacy Collection Notice is available at [insert link].
Modification of Terms
We reserve the right to change, amend, modify, add or delete any of these Terms and Conditions, at any time, in an exercise of our sole discretion. These amendments, modifications, additions or deletions apply to your use of the Platform and Services as soon as they are displayed on the Platform (whether or not you are aware of those amendments, modifications, additions or deletions) and will be notified to you on the first log-in to your Account after the change has occurred. If these Terms and Conditions, as amended, are not acceptable to you, then you may terminate your Account. Otherwise, your continued use of the Platform and Services following any changes to the Terms and Conditions signifies that you accept and agree to the changes, and that all subsequent transactions by you will be subject to the amended Terms and Conditions.
If any provision of the Terms and Conditions are held to be invalid, unenforceable or illegal for any reason, the remaining parts of the Terms and Conditions will be in full force and effect.
Governing Law
You acknowledge and agree that:
Your use of the Site and these Terms and Conditions are governed by the laws of New South Wales; and
You irrevocably submit to the non-exclusive jurisdiction of the courts of New South Wales and the Commonwealth of Australia in respect of all matters arising out of or relating to the Site and these Terms and Conditions.
Definitions
"Account" means a YPay account accessible on the Platform.
"App" means a mobile application made available by us that can be downloaded from the Apple App Store, Google Play Store or any other app store or market from time to time. [PA Comment: Please confirm if there will be an app at the time these T&C’s are published]
"Cryptocurrency" means the coins, tokens, crypto, digital currency, or digital assets we may purchase on your behalf from time to time.
"Platform" means the Website or App made available by us from time to time through which we may provide our Services.
"Privacy Policy" means the privacy policy that we have available on our Website from time to time, accessible at [insert link].
"Services" has the meaning set out in clause 1.3.
"Terms and Conditions" means these terms and conditions.
"Website" means the internet site at the domain [insert] or any other site or operated by us.
"YPay, we, us or our" means XPayroll Pty Ltd ACN 670 859 695 and any entities it controls.
"you or your" means any user of the Platform.