This Part D forms part of the Tyro EFTPOS Banking Terms and Conditions and applies to all Loans.
1. Meaning of words
All capitalised words have the same meaning as in Part A of the Tyro EFTPOS Banking Terms and Conditions unless specifically defined here. In this Part D:
- “Agreement” has the meaning given in Part A of the Tyro EFTPOS Banking Terms and Conditions but also includes this Part D and the Loan Offer.
- “Default” means any event described in clause 10.
- “Guarantor” means the person who guarantees to us the payment of all of the Loan Amount.
- “Loan” means a loan provided by us to you.
- “Loan Amount” means any principal amount advanced by us to you and any Loan Fee.
- “Loan Fee” means the fee set out in the Loan Offer.
- “Material Adverse Effect” means a material adverse effect on you, your business, your assets or the Guarantor as determined reasonably by us.
- “Loan Offer” means the loan offer provided by us to you, containing the key terms of the Loan.
- “POS” means point-of-sale products.
- “Repayment %” means the % set out in the Loan Offer, which is applied to the total dollar value of all Transactions processed by you each day for the purposes of repayment of the Loan Amount.
- “Taxes” means any tax, levy, duty, rate, impost or charge imposed, levied or assessed by the Australian Tax Office and any revenue authority, and any related penalty, fine, fee or interest.
Clause 2 ‘Definitions’ of Part A of the Tyro EFTPOS Banking General Terms and Conditions applies to this Part D. However, if there is an inconsistency this Part D will prevail.
2. Loan Offer
We may provide you with a Loan Offer in our absolute discretion. Each Loan Offer will be subject to this Part D. We can withdraw the Loan Offer at any time in our absolute discretion. The Loan Offer may contain other terms and conditions, including an expiry date. To the extent those terms are inconsistent with this Part D, the terms of the Loan Offer prevail to the extent of the inconsistency.
You irrevocably authorise Loan Offers to be accepted electronically on your behalf in accordance with your Administration Authority. Once a Loan Offer is accepted, you will be bound by this Part D and the terms and conditions in the Loan Offer.
3. Further Information
You must provide us with any information we reasonably request from time to time.
You must only use the Loan for your business purposes or any other purpose that we approve in writing.
Where we provide the Loan for the purpose of financing a POS, the Loan Amount (less the Loan Fee) must be applied in payment of the invoiced price for the POS. The supply of the POS is between you and the POS supplier. We make no representations or warranties regarding the POS. You will still be required to repay any outstanding Loan Amount even if you have a claim against the POS supplier including where there are defects in the POS or it is not fit for purpose. You agree you have done your own investigations into the POS.
We provide the Loan by depositing the Loan Amount (less the Loan Fee) into your Tyro Smart Account. Where we provide the Loan for the purpose of financing a POS, you authorise and direct us to immediately deduct the Loan Amount (less the Loan Fee) from your Tyro Smart Account to pay the invoiced price to the POS supplier on your behalf. You authorise us to rely on the accuracy of an invoice provided by the POS supplier for the supply of the POS to you and we are not required to undertake any investigations or inquiries to ascertain whether it is valid.
The Loan Offer sets out the Loan Fee that you are required to pay us which forms part of your Loan Amount.
You authorise us to deduct from your Tyro Smart Account the Repayment % of the total dollar value of all Transactions processed by you each day until the Loan Amount is repaid in full. We will make this deduction at or before the settlement of your Transactions to your Tyro Smart Account.
Where there are multiple Tyro terminals issued to you in respect of different business locations, you authorise us to deduct the Repayment % of the total dollar value of all Transactions processed by you from any or all locations until the Loan Amount is repaid in full.
Despite the Repayment %, you must repay a minimum of 10% of the Loan Amount each 90 days (starting on the date we provide the Loan). If your repayments during the 90 day period (based on the Repayment %) are less than the minimum repayment, we can debit the balance required to make up the minimum repayment from your Tyro Smart Account or Linked Account without notice. You must ensure that the Tyro Smart Account or Linked Account is open and contains enough money to cover your minimum repayments. Failure to make a minimum repayment is a Default.
You can make additional payments at any time. You can’t redraw any amounts repaid.
In addition to any minimum repayments that are missed, you authorise us to debit from your Tyro Smart Account or Linked Account any other amounts which are owing by you under or in connection with the Loan (including any Taxes).
To the extent that the funds in your Tyro Smart Account or Linked Account are insufficient to repay us in full, you authorise us to debit the available balance in those accounts and acknowledge that the residual amount payable will be a debt due and payable by you to us. We can combine any accounts you have with us and apply any funds in those accounts to repay the Loan Amount.
8. Additional obligations
Until you repay the Loan Amount in full you must:
- continue to hold and operate a Tyro Smart Account as your Settlement Account for all Transactions you process;
- continue to prudently manage your business and process Transactions in the manner in which you usually process them;
- not materially decrease the value of Transactions processed or direct customers to use alternative payment methods to avoid or delay repayment;
- tell us immediately if you are experiencing financial difficulty, you believe you may find it difficult to make repayments when due or if any of your other debts become due and payable early or if you are in default under any agreement for such debt;
- not revoke or attempt to revoke our authority to debit your Linked Account;
- not declare, pay or make any asset distribution (e.g. dividends);
- not stop, or threaten to stop, carrying on all or a material part of your business, or sell a material part of your business or assets;
- not change your business location without our prior consent;
- not materially amend your constitution or any other document that is material to your business;
- not enter into any transaction that is not on arm’s length terms;
- not allow any consent, authorisation, registration, permit or exemption that is necessary to conduct your business or perform your obligations to lapse.
9. Representations and warranties
On each day until you repay the Loan Amount in full you represent and warrant to us that:
- if you are a company, you are properly registered and incorporated as a corporation which validly exists under the laws of its jurisdiction of incorporation;
- if you are acting as trustee of a trust, you have the authority to agree to the Loan on behalf of the trust and authority under the deed constituting the trust to borrow money;
- the Loan is enforceable against you and will not infringe or conflict with any law, judgment, ruling, order, document or agreement applying to you or your assets;
- you have paid all Taxes that are due and payable;
- you are solvent and there are no circumstances of any kind that could have a Material Adverse Effect;
- all of the information you have provided to us is true and correct and not misleading; and
- any invoice provided to us for financing a POS is valid and represents a genuine sale of the POS.
Each of the following is a Default (whether or not it is in your control):
- you or the Guarantor fail to pay any amount owed to us on the date it is due for payment (including any minimum repayment);
- we determine (acting reasonably) that you have breached any other obligation under the Agreement which is in our reasonable opinion not capable of remedy;
- you fail to remedy a breach that is capable of remedy within 5 days of the date of receiving a notice from us to remedy the breach;
- an administrator, receiver, receiver and manager, administrative receiver or similar officer is appointed to you or your business;
- you or a Guarantor are insolvent or stop or suspend or threaten to stop or suspend payment of some or all of your debts;
- all or a substantial part of your assets are compulsorily acquired or divested by or by order of a government agency or by law;
- if you are an individual, you commit an act of bankruptcy, are issued with a bankruptcy notice or die or become mentally ill or any of these events happen to the Guarantor; or
- any event or series of events, whether related or not, occurs which in our opinion has or could have a Material Adverse Effect.
You must immediately notify us if a Default occurs or is likely to occur.
11. Consequences of Default
In addition to any rights at law, at any time after a Default, we may do any of the following:
- by notice to you, cancel the Loan and declare the Loan Amount to be immediately due and payable, and upon receipt of the notice, you must immediately pay us the outstanding Loan Amount;
- debit the Tyro Smart Account or Linked Account for the outstanding Loan Amount or the balance of monies in the Tyro Smart Account or Linked Account;
- by notice to the Guarantor, declare the outstanding Loan Amount to be immediately due and payable by the Guarantor; and/or
- do anything else the law allows us to do.
At any time after a Default you irrevocably authorise us to withhold, apply or direct settlement monies received through Transactions processed by us towards the repayment of the Loan in priority to any or all of your other creditors.
We can exercise any of these rights despite any delay or previous waiver of these rights and are not liable for any loss caused by exercising, not exercising or delaying in exercising any of our rights.
12. Power of attorney
While a Default continues, you irrevocably appoint us as your attorney to do all or any of the following on your behalf and in your name:
- anything which you are required to do under the Agreement or under law in connection with the Agreement; or
- anything which may assist us in exercising our rights under this Agreement.
We may delegate our powers under this clause (including the power to delegate) to any of our representatives for any period and may revoke that delegation.
You agree to ratify anything done by us (or any of our representatives) under this clause.
You indemnify us for any expenses, liabilities, loss (including loss of profits), compensation or other damages we incur in connection with:
- providing you with the Loan;
- your or the Guarantor’s failure to pay us any amounts when due;
- where you are acting as trustee for a trust, any claim that the trust does not have the power to enter into the Loan;
- any actual or contemplated enforcement of the Agreement, or the actual or contemplated exercise, preservation or consideration of any of our rights, powers or remedies; or
- any enquiry from any regulatory authority concerning you, your business or a Guarantor.
If a payment made by you to us is void, voidable, unenforceable or defective for any reason or we choose to direct that payment to another party who is entitled to the money that is subject to the payment (each an “Avoidance”), then even though we knew or should have known of the Avoidance:
a. your liability under these terms will be what it would have been, and will continue, as if the payment which was subject to the Avoidance had not occurred; and
b. you will execute and do anything necessary or required by us to restore us to the position immediately before the Avoidance. This clause survives termination of this Agreement.
We may assign any of our rights under these terms at our absolute discretion. You must not assign your rights under these terms, unless you obtain our prior written consent.
Any statement made by us (including in relation to amounts payable by you) is conclusive and binding, unless there is an obvious error.