Trustport helps people transact when buying and selling real estate. We act as a neutral third party and provide an online platform through which we provide Services including an Escrow Service for real estate transactions. The Escrow Service involves us holding money in bare trust on behalf of a Buyer and/or Vendor until we receive a valid Payment Direction.
When you use our Services, you agree to all of the terms and conditions in this Platform Agreement. Please consider this Agreement and our Financial Service Guide (available on our website) carefully before using our Services and contact us if you have any queries.
1.1 By creating an account on the Trustport Platform, or accessing or using our Services, you are entering into a legally binding contract with Trustport (also referred to as “we”, “us” or “our”) on the terms and conditions of this Agreement.
1.2 If you do not agree to any of the terms or conditions of this Agreement, do not create an account and do not use our Services.
1.3 If you wish to terminate this Agreement at any time, you can do so by closing your account and/or ceasing to access and use our Services.
2.1 This Agreement uses special meanings for the following capitalised words:
2.2 In this Agreement:
3.1 As part of our Services, we may provide you with access to and use of the Platform which is a secure online platform that you may use to hold money in escrow in connection with the sale and purchase of real estate.
3.2 The Platform may provide:
3.3 You may apply to open an account on the Platform, at any time, which we may accept or decline at our complete discretion. Agencies or Representatives may commence applications to open a Platform account on behalf of Buyers and Vendors which they represent.
3.4 If we accept your application, we grant you a personal, non-exclusive, non-transferable, revokable, non-sublicensable licence to access and use the Platform subject to the terms and conditions of this Agreement.
3.5 You agree that we may decide not to give you access to features of the Platform. For example:
3.6 From time to time, we may modify the Platform and/or our Services (including by making additions or deletions) without notice to you. We do not intend to reduce the functionality of our Services but may do so.
3.7 We reserve the right to suspend, disable, deactivate or block your Platform account, at any time, for any lawful reason.
3.8 You acknowledge that we will, subject to planned downtime, make reasonable efforts to ensure that the Platform and our Services are generally available. However, we do not guarantee that access to the Platform or our Services will be uninterrupted or error-free or that you will be able to access or use all of the features of the Platform or our Services at all times. We will make reasonable efforts to notify you of system outages and scheduled downtime.
4.1 We may provide the Escrow Service to Buyers and Vendors through the Platform or as otherwise agreed in which we hold money related to a real estate transaction on bare trust on behalf of a Buyer and/or Vendor until we receive a Payment Direction to release the money.
4.2 If we provide the Escrow Service to a Buyer or Vendor, you agree that the terms and conditions set out in the Escrow Deed and this Agreement apply to any Escrow Service we provide.
4.3 Unless otherwise agreed, an Escrow Request must:
4.4 On submitting an Escrow Request to us, the Depositor:
4.5 On our acceptance of your Escrow Deposit, you irrevocably instruct us to:
4.6 You agree that, where we are required to pay all or part of the Escrow Deposit, we may effect payment in any manner we consider appropriate.
4.7 You agree that where you become entitled to receive money from the Escrow Bare Trust, we will only pay this money to an account in your name unless otherwise agreed.
4.8 You agree that all payments from the Escrow Bare Trust are by electronic bank transfer and under no circumstance will we make payment to any person by cheque or using physical cash.
4.9 As part of the Escrow Service, you agree that we may disclose your personal information to other parties related to your real estate transaction including the Buyer and Vendor and their appointed Agency and Representatives and our service providers. Such information may include the amount of money you have paid into the Escrow Bare Trust and your personal details.
5.1 When you apply to open an account on the Platform, we create a unique account for you (including BSB and account number) (Virtual Account) which you can use as part of our Collection Services. We hold all money deposited in a Virtual Account.
5.2 Only the following types of payments may be received into your Virtual Account:
5.3 Only the following payments may be made from your Virtual Account:
5.4 We may pay money into your Virtual Account by any of the following methods:
5.5 You may only deposit money into your Virtual Account from a bank account in your name.
5.6 You agree that all payments as part of our Collection Services must be by electronic bank transfer and under no circumstance will we make payment to any person by cheque or using physical cash.
5.7 We may delay, reject, reverse or refund a transaction in connection with your Virtual Wallet:
5.8 Settlement times apply to payments to and from your Virtual Wallet. Payments generally settle within 2 Business Days, but settlement times may be delayed under certain conditions such as those set out in clause 5.7.
5.9 You agree that we have no liability to you for any Claim or Loss which arises due to the occurrence of circumstances set out in clause 5.7.
5.10 You authorise us to provide all information (including your personal information) and instruction required by any of our Payment Service Providers in relation to your Virtual Wallet, including for the purposes of:
5.11 You acknowledge the fraud risk which may arise during any change in your bank account details which we hold. In the event that you ask us to change your bank account details, you agree to provide us with all reasonable information to allow us to reasonably verify that the bank account details you have provided is for an Australian bank account in your name including by requesting that you provide us with a certified copy (as defined by anti-money laundering laws) of a bank statement which evidences that the name of the account holder and the account’s account number and BSB.
5.12 By accessing or using www.trustport.com, you acknowledge that our Payment Service Providers may collect your personal information from us or from the financial institution involved in a transaction. If this personal information is not provided, the Payment Service Provider may not be able to process a transaction in your Virtual Wallet.
6.1 From time to time, we may agree to provide you with additional services including services which supplement or complement the Services set out in this Agreement. You agree that the terms and conditions of this Agreement apply to any such services to the furthest extent possible.
6.2 While we intend to provide Services to you digitally, you agree that we may, at our complete discretion, provide the services to you by other means, including in circumstances where there is a Platform, service provider or other technology outage.
7.1 Where you act for yourself, you agree to this Agreement on your own behalf.
7.2 Where you act on behalf of another (e.g. company, trust or partnership), you agree to this Agreement on behalf of the entity for whom you act for and, where applicable, on your own behalf.
7.3 Where applying on behalf of another, you agree and personally warrant that you are duly authorised and have the power to enter into this Agreement.
7.4 Where you act jointly together with others, you agree that you act and enter into this Agreement jointly, and not as tenants in common, and authorise each person who is a party to this Agreement to act on behalf of the others in relation to the Services.
7.5 You warrant that you are at least 18 years of age.
7.6 Where we provide you with financial services in connection with the Services, we do so as an authorised representative of our AFS Licensee. This includes where we provide you with general financial product advice in relation to non-cash payment products and basic deposit products.
7.7 Where our Services do not relate to a financial service, such Services are not authorised by our AFS Licensee and our AFS Licence is not liable to you and does not owe you any obligations in relation to those services. The Escrow Service and Collection Service are not considered by law to be a financial service.
8.1 You agree that only you, and Agencies or Representatives authorised by you, can provide us with instructions in connection with the Services.
8.2 You agree that where you have notified us in writing that you have appointed one or more Agencies and/or Representatives to act on your behalf as your agent, you have duly appointed that person as your agent and that we are not required to investigate or confirm that authority.
8.3 You agree that we may accept instructions from Agencies and Representatives you have appointed as if they were instructions provided by you (unless and until you notify us in writing that their appointment has been revoked) and we are entitled to assume that any instruction or communication by your Agency or Representative made on your behalf has been authorised by you.
8.4 You agree that we are not liable for any direct or indirect Claim or Loss you or any other person suffers where we act in accordance with your instructions or the instructions of Agencies or Representatives you have appointed (even if the instruction was not authorised by you).
8.5 Where you have appointed an entity as your agent, we may accept instructions from any representative of that entity.
8.6 You agree to accept information and disclosures from us, and you may provide information to us, through your appointed Agencies and Representatives. You agree that we may share your personal information with such Agencies and Representatives.
8.7 If you are an Agency or Representative, you indemnify us against any direct or indirect Claim or Loss suffered by a Buyer or Vendor as a consequence of our accepting and acting on any instruction you make on behalf of a Buyer or Vendor.
9.1 You acknowledge and agree that:
9.2 Unless we have received written notice that the security of a communication method has been compromised, you agree that:
9.3 We may refuse or delay to act on any communication to verify the authenticity of the communication.
9.4 You agree that we may decide to cease communicating with you through any medium or require you to communicate with us through any reasonable medium or in a particular form.
10.1 You agree that you must:
10.2 You agree that you must not:
10.3 You represent and warrant on an ongoing basis that:
10.4 You agree to immediately notify us in writing if clause 10.3 no longer remains true.
10.5 Where you are an Agency or Representative, you agree to use the Platform in good faith and only use the Platform where the relevant Buyer or Vendor for whom you act on behalf intends to use our Escrow Service.
11.1 We are committed to protecting our client’s information and data which we hold. We agree to implement and maintain information security controls that establish administrative, technical and physical safeguards that are appropriate to:
12.1 We collect your personal information to provide you with Services. We cannot provide these Services if you do not provide us with your personal information. When you provide us with your personal information:
12.2 Please see our privacy policy, available at www.trustport.com, for further information including how you can access or correct the personal information we hold, the countries we may send your information to and how you can complain about a privacy issue.
13.1 You acknowledge and agree that we must comply with our regulatory obligations in relation to anti-money laundering and counter-terrorism financing (“AML/CTF”).
13.2 You agree:
13.3 To the extent permitted by law, you agree that we may disclose information we obtain from you and third parties to verify your identity in connection with our AML/CTF obligations with Agencies and Representatives who act on your behalf, our authorising Australian financial services licensee, the Payment Service Provider and any of our other service providers who may be required to verify your identity under AML/CTF laws.
14.1 Unless you opt out, you agree that we may give you transaction confirmations and disclosure documents which relate to the Platform electronically (including financial services guides and product disclosure statements).
14.2 We may provide documents to you electronically by telling you (including during the application process or by a notification to you on the Platform) where these documents can be found online or sending you an email with a link to such documents.
14.3 You may opt out of receiving such digital disclosure by letting us know that you do not agree to digital disclosure by email (hello@trustport.com).
14.4 If you opt out within 7 days of the commencement of this Agreement, we will send you the disclosure documents which we were required to send you during this 7-day period.
15.1 Unless otherwise agreed in writing, we do not charge you fees for our Services.
15.2 However, you acknowledge that:
15.3 In the unusual event that we agree with you that fees are payable for our Services, we will also agree at this time when these fees fall due and payable.
15.4 You acknowledge the cyber security risk of invoice fraud and agree that any change to the details of our bank account or your Virtual Account is only effective following:
15.5 In the event that any interest is payable in connection with any Virtual Wallet, you agree that we are entitled to retain any and all interest earned.
15.6 Where GST (as GST is defined by A New Tax System (Goods and Services Tax) Act 1999 (Cth)) is applicable to any amounts payable under this Agreement:
15.7 For the avoidance of doubt, unless stated otherwise, any amounts stated in connection with this Agreement are GST exclusive.
16.1 You acknowledge and agree that the Financial Claims Scheme which protects deposits with an Australian Bank up to a limit of $250,000 per account holder per Australian Bank does not apply to your Virtual Wallet or directly to your interest in the Escrow Bare Trust.
17.1 This Agreement commences on the date that:
17.2 Subject to clause 17.6, the term of this Agreement continues unless terminated in accordance with this clause.
17.3 You may terminate this Agreement without cause by ceasing to use our Services or making a written request to us to close your account in the Platform.
17.4 We may terminate this Agreement immediately with written notice to you in the event of:
17.5 If the cause of termination under this clause was due to your breach, you agree to pay us for any Loss we reasonably incur as a direct result of the termination within 5 Business Days of our written request for payment (provided that we have taken reasonable steps to mitigate any expense or liability).
17.6 This Agreement will survive and continue to apply to any money we accept as a deposit in the Escrow Bare Trust as part of our Escrow Services until entitlements to that deposit is paid in accordance with the Escrow Deed.
17.7 Termination under this clause does not affect any of the parties’ accrued rights under this Agreement.
17.8 Any clause which provides any party with indemnification or limitation of liability survives termination of this Agreement including clause 19.
17.9 The following clauses also survive termination of the Agreement: clause 18 (Actions on termination) and clause 22 (Intellectual property).
18.1 On termination of this Agreement:
18.2 We may refuse or delay to take action to pay money in your Virtual Wallet to you under clause 18.1(b):
18.3 You agree that we may set off any amount which you owe to us from any payment owed to you under clause 18.1(b).
19.1 To the extent permitted by law, you agree that our liability to you for any Loss incurred in connection with this Agreement is limited to amounts paid by you, and otherwise not returned to you or paid to others in accordance with instructions we receive, under this Agreement.
19.2 To the extent permitted by law, you agree that we are not liable to you and you indemnify us from and against any Claim or Loss (including legal expenses) arising directly or indirectly to us or any third party as a result of or in connection with your breach of this Agreement, our acting in accordance with your instructions, your fraudulent or unlawful instructions or any inaccurate or erroneous information provided by you.
20.1 You acknowledge and agree that Trustport must comply with legal obligations in relation to any unclaimed money held in a Virtual Wallet or Escrow Bare Trust including under the Unclaimed Money Act 2008 (Vic), Unclaimed Money Act 1995 (NSW) and Public Trustee Act 1978 (Qld).
20.2 If we are unable, for any reason, to pay any amount in a Virtual Wallet or Escrow Bare Trust to you (or any other party entitled to payment) which remains unclaimed within time limits applicable to unclaimed money prescribed by law, you authorise and consent to us:
20.3 On our making payment in accordance with clause 20.2, we are deemed to have satisfied all liability to you in connection with a Virtual Wallet and/or Escrow Service.
21.1 If we are affected by a Force Majeure Event, we must provide written notice to you as soon as practicable following the Force Majeure Event which includes details of:
21.2 Our obligations and liabilities under this Agreement and our Services will be suspended to the extent that we are wholly or partially precluded from complying with those obligations as a direct result of the Force Majeure Event and you are not liable to pay for suspended services for the period of the suspension.
21.3 We are not liable for any failure to perform or any delay in performance under this Agreement or our Services if:
21.4 A Force Majeure Event does not relieve us from:
22.1 Except where otherwise agreed, the Platform (and our website) and the content included in or made available through the Platform (and our website), such as text, graphics, logos, images, sounds, videos, digital downloads, data compilation, software, and documents, are the exclusive property or us or our licensors. All rights, title and interest not expressly granted with respect to the Platform (and our website) and its content are reserved and retained by us or our licensors.
22.2 Our graphics, logos, designs, page headers, button icons, scripts, trademarks and trading names are owned by us or our licensors and may not be used in any manner without our prior written approval.
23.1 We may change the terms of this Agreement from time to time in accordance with this clause.
23.2 We will provide you with 10 Business Days written notice of a change to this Agreement by a notification through the Platform, or by other means, if:
23.3 We may implement a change to this Agreement immediately by publishing the change on our website, and we are not required to provide you with prior notice, if the change:
23.4 We agree that any change to this Agreement cannot be retroactive. If you object to any change, you may close your account or cease to use our Services.
23.5 Your continued use of our Services after we publish or send a notice about our changes to this Agreement means that you agree to the updated terms as and from their effective date.
24.1 You agree to take any action which Trustport may reasonably require and promptly execute and deliver all documents and take all other action necessary or desirable to effect, perfect or complete transactions contemplated by the Services.
24.2 The terms of this Agreement are governed by and construed under with the laws of the State of Victoria, Australia. Each party irrevocably submits to the exclusive jurisdiction of the courts in the State of Victoria, Australia in relation to any legal action or proceedings arising out of or in connection with this Agreement.
24.3 All notices under this Agreement must be in writing, addressed to the recipient and delivered to the recipient's usual address or email address or by way of notification to your account in the Platform.
If you have any questions or concerns regarding these Terms of Service, please contact us at support@trustport.com.
