1. Introduction

1.1 You have requested the provision of the Services to you.

1.2 By responding that you accept these Terms, or otherwise accessing or using the Services, you have accepted and agreed to be bound by these Terms.

1.3 Your acceptance binds you and all of your employees and officers to these Terms.

2. Declaration

2.1  You declare that:

a. your business meets the eligibility criteria set out in Appendix A;

b. if you are an individual, you are over the age of 18 years and are of Aboriginal and/or Torres Strait Islander descent; and

c. if you are an organisation, at least 50% of the ownership of the organisation is by a person(s) of Aboriginal and/or Torres Strait Islander descent.

3. Services

3.1 If IBA provides the Services, you acknowledge and agree that:

a. any information provided by IBA (including its officers and employees), is general in nature and should not be taken as constituting professional advice;

b. you should consider seeking independent legal, financial, taxation or other advice to determine how any information provided relates to your particular circumstances;

c. IBA makes no representation or warranty with respect to the accuracy, reliability or completeness of any information it provides to you.

3.2  If IBA engages a Consultant to provide the Services, you acknowledge and agree that:

a. IBA makes no representations, guarantees or warranties regarding:

i. the qualifications and experience of the Consultant;

ii. the suitability of the Services for your needs; and

iii. the accuracy, reliability or timeliness of the Services;

b. IBA is not responsible for the accuracy or completeness of any information, materials, opinions or advice provided by the Consultant; and

c. any reliance or other use of the information, materials, opinions or advice provided by the Consultant shall be entirely at your own risk.

3.3 In addition to the above clauses, you acknowledge and agree that:

a. the nature and extent of the Services to be provided to you will be at IBA’s sole discretion;

b. the provision of any information, material, opinions or advice by IBA or the Consultant does not guarantee your success in any business activity;

c. you retain sole responsibility for your actions and decisions (regardless of whether they are based on options or suggestions provided by the Consultant);

d. IBA is not responsible for any costs or expenses you incur in relation to the Services; and

e. IBA is under no obligation to provide any finance or further support or resources to you.

4. Your Obligations regarding Consultant

4.1 You will keep us updated about the provision of the Consultant’s Services and provide us any information and documentation we reasonably require in order to administer, manage and assess the Consultant and their Services.

4.2 You represent and warrant that any information or material you provide to IBA or the Consultant will not infringe any third party rights or any law.

4.3 Should you require the Consultant’s services in addition to the Services (Additional Services), you will be required to negotiate a separate agreement directly with the Consultant. IBA does not accept any responsibility for any arrangement between you and the Consultant for the provision of Additional Services.

5. Intellectual Property

5.1 You grant IBA and the Consultant (if applicable) a royalty free, non-assignable licence to use and share the intellectual property rights in any material or information you provide, to the extent necessary for IBA and the Consultant to provide the Services to you.

5.2 Nothing in these Terms affects the title to, and intellectual property rights in, any of yours or IBA’s pre-existing material.

6. Liability

6.1 Except for any liability that cannot be excluded by law, IBA’s (including its officers, subcontractors, representatives, employees and agents) liability for any loss or damage (including that arising from negligence, loss of opportunity or personal injury) whether direct, indirect, special or consequential, arising in any way out of the Services is limited to the resupply of the Services or the reasonable cost of
having the Services resupplied (at IBA’s option). This exclusion shall extend to both you and to any other person who may suffer loss or damage as a result of the use of the Services.

6.2. To the full extent permitted by law, any term, warranty or condition which would otherwise be implied into this agreement is excluded. In the event any statute implies terms into this agreement which cannot be lawfully excluded, such terms will apply to
this agreement, save that the liability of IBA, its officers, subcontractors, representatives, employees and agents for breach of any such implied term will be limited in accordance with the immediately preceding limitation of liability clause above.

6.3. Subject to clause 6.1, you unconditionally and irrevocably release and discharge IBA from all claims, liabilities and costs which you now have, at any time had or but for this agreement might have had against IBA (whether or not IBA was or could have been aware of those claims, liabilities or costs) arising out of or in connection with the Services or a breach of these Terms by IBA.

7. Indemnity

7.1 You must at all times indemnify and hold harmless IBA and the Consultant (including their officers, representatives, subcontractors, employees and agents) (the Indemnified Persons) against all claims, losses, damages and expenses (including legal costs and expenses on a solicitor/own client basis) or liability incurred or suffered by the Indemnified Persons arising from any:
a. negligent or unlawful act or omission by you or your personnel;
b. breach by you or your personnel of your obligations under these Terms;
c. action or claim for alleged infringement of any intellectual property rights or moral rights of any third party; and
d. any third party claims from your use of the Services,
except to the extent that any act or omission, on the part of the Indemnified Persons contributed to the claim, loss or damage.

8. Privacy

8.1 You acknowledge and agree that:
a. IBA will collect, use and disclose personal information as set out in its Privacy Notice (see Appendix B).
b. you have obtained the consent of:
i. any person whom you have provided us with their personal information;
ii. any Relevant Person;
and have informed them about IBA’s Privacy Notice.

9. Confidentiality

9.1 Subject to clause 9.2, neither party may, without the prior written consent of the other party, disclose any Confidential Information of the other party to a third party.

9.2 The obligations on the parties under this clause 9 will not be taken to have been breached to the extent that Confidential Information:

a. is disclosed to the Consultant for purposes related to the Services;

b. is disclosed by a party to its professional advisers, or is disclosed by a party to the extent strictly necessary in order for them to perform their obligations or to exercise rights under these Terms;

c. is disclosed to a party's internal management personnel;

d. is disclosed by IBA to the responsible Minister, in response to a request by a House or a Committee of the Parliament of IBA;

e. is authorised or required by law, including under these Terms, under a licence or otherwise, to be disclosed;

f. is used in relation to legal proceedings associated with these Terms;

g. has been independently developed or acquired by you; or

h. is in the public domain other than as a result of a breach of this clause 9.

10. Termination

10.1    IBA may terminate, modify, suspend or reduce the Services at any time without prior notice to you.

11. Miscellaneous

11.1 These Terms constitute the entire agreement between the parties and supersedes all prior communications, negotiations, arrangements and agreements, either oral or written, between the parties with respect to its subject matter.

11.2 IBA reserves the right to amend these Terms at any time, by direct notification to you or via its website (www.iba.gov.au).

11.3 You must not, without IBA's consent in writing assign your rights under these Terms.

11.4 These Terms do not create a relationship of employment, agency or partnership between the parties. You must not represent yourself as being an officer, employee, partner or agent of IBA, or otherwise able to bind or represent IBA.

11.5 Clauses 5 to 9, 11.6, 11.7 and 12 shall survive notwithstanding the termination, modification, suspension, reduction or completion of the Services.

11.6 These Terms shall be governed by the laws of the Australian Capital Territory and the Commonwealth of Australia and the parties agree to submit to the jurisdiction of that State/Territory and the Commonwealth respectively.

11.7 A term or part of a term of these Terms that is illegal or unenforceable may be severed from these Terms and the remaining terms or parts of the terms of these Terms continue in force.

12. Definitions

12.1 In these Terms:

Confidential Information means information that is by its nature confidential and:

a. is agreed by the parties to be confidential; or

b. a party knows or ought to know is confidential.

Consultant means any consultant procured by IBA to provide you the Services.

IBA means Indigenous Business Australia.

Relevant Persons has the meaning given to it in Appendix A.

Services means the business support services, under IBA’s business relief package.

Terms means these terms and conditions.

13. Interpretation

13.1 In these Terms, except where the contrary intention is expressed:

a. the singular includes the plural and vice versa, and a gender includes other genders;

b. another grammatical form of a defined word or expression has a corresponding meaning;

c. a reference to a party includes the party's executors, administrators, successors and permitted assignees and substitutes;

d. a reference to a statute, ordinance, code or other law includes regulations and other instruments under it and consolidations, amendments, re– enactments or replacements of any of them;

e. any agreement, representation, warranty or indemnity by two or more parties (including where two or more persons are included in the same defined term) binds them jointly and severally;

f. a rule of construction does not apply to the disadvantage of a party because the party was responsible for the preparation of these Terms or any part of it;

g. the word 'include', or other grammatical form of it, is not a word of limitation;

h. headings are for ease of reference only and do not affect interpretation.

Appendix A: Eligibility criteria

Your business (Business) must meet the following criteria:

  • the Business:
    • has at least 50% Indigenous ownership or membership; or
    • is an Aboriginal and Torres Strait Islander corporation registered under the Corporations (Aboriginal and Torres Strait Islander) Act 2006; and
    • carries on a business for profit; and
    • has no more than 200 employees; and
  • the Indigenous owner(s) of the Business (if applicable) are actively involved in the Business;
  • the Business was established no less than 6 months before 31 March 2020;
  • the Business is not wholly owned by the Commonwealth;
  • the Business has been adversely impacted by COVID-19; and
  • none of the Relevant Persons in the Business:
    • are undischarged bankrupts; or
    • have been found guilty of for an indictable offence against a law of the Commonwealth or another jurisdiction that involves fraud, embezzlement, cybercrime, counterfeiting, identity theft, money laundering, terrorism financing, tax evasion, bribery, corruption, blackmail, forgery, insider trading, market manipulation, an offence under the Taxation Administration Act 1953 (Cth), or any other serious financial crime.

For the purposes of this Appendix A, a Relevant Person in the Business means:

  • if you are a sole trader (including if acting in a trustee capacity): you;
  • if you are a partnership (including if acting in a trustee capacity): all partners, members of the Business’ management team or otherwise any individual that can exercise a significant degree of control or influence over the management or decision-making of the Business;
  • if you are an incorporated entity (including if acting in a trustee capacity): all directors, members of the Business’ management team or otherwise any individual that can exercise a significant degree of control or influence over the management or decision-making of the Business; and
  • if you are any other type of person: members of the Business’ management team or any other individual who can exercise significant degree of control or influence over the management or decision-making of the Business.

APPENDIX B: PRIVACY NOTICE

Indigenous Business Australia (IBA) takes privacy seriously and is committed to protecting your personal information. We only collect, use and disclose your personal information for the purpose of performing our functions and activities, and in accordance with the Privacy Act 1988 (Cth) (Privacy Act) and other applicable laws.

This Privacy Notice (Privacy Notice) describes how IBA collects, uses, discloses and manages your personal information. Further information can be found in our Privacy Policy and Credit Information Policy.

What types of information do we collect?
IBA usually collects the following types of personal information about you:
• your name;
• your gender;
• your contact details, including your address, email address and phone numbers;
• your date of birth;
• your marital or relationship status;
• your driver’s licence number or passport number (or other identification number);
• your employment details;
• your business details;
• information about your financial circumstances, including your assets, income and expenditure, your dependents, your banking information and your tax file number;
• information about your credit history including, credit limit amounts, repayment information, information about defaults, credit worthiness, credit standing;
• credit capacity and serious credit infringements;
• information about your visits to our website (www.iba.gov.au) or other websites maintained by us or use of our mobile apps – including your server address, your top level domain name (for example .com, .gov, .au, .edu etc), the date and time of your visit to the site, the pages accessed and documents downloaded, the previous site visited and the type of browser used, and if accessing our website through a mobile device, mobile device identifiers (such as the device type, IP address and the operating system); and
• details of your interactions with us.

We also collect some personal information which is “sensitive information” that is afforded special protection under the Privacy Act. We will only collect this sensitive information if (a) you provide your consent at the time we collect the information from you, or (b) if an exception under the Privacy Act applies which allows us to collect the information. The sensitive information we may seek from you may relate to:
• your Aboriginality or Torres Strait Islander descent;
• whether you pay membership fees to a professional or trade association or union; or
• your criminal history, if any.

We may also collect and handle sensitive health information in certain circumstances, for example, where you have made a financial hardship request due to health reasons or where you receive a payment or income supplement due to a disability or medical condition.

How do we collect information from you?
IBA collects personal information directly from you in a number of different ways, namely when you:
• complete written or online forms and submit them to IBA;
• talk to IBA, either over the phone, through audio or video link or face-to-face; or
• interact with us by letter, email, social media, text message, or other text-based or web-based communication channels.

Sometimes we need to collect information about you from other sources to assess your application, in relation to providing you with products or services or otherwise perform our functions or to comply with a legal or regulatory requirement. We will only do this:
• with your consent;
• where we are permitted or required to do so by law (such as under Anti-Money Laundering or Counter-Terrorism Financing laws, National Consumer Credit Protection laws and taxation laws), or by court order; or
• where it is impracticable for us to obtain that information direct from you.

Why do we collect, use and disclose your personal information?

IBA has several purposes and functions under the Aboriginal and Torres Strait Islander Act 2005 (Cth) (ATSI Act). These purposes and functions broadly involve assisting and enhancing the economic interests of Aboriginal and Torres Strait Islander people.

We collect, use and disclose your personal information in order to perform our functions and activities. Depending on the product or service that you have enquired about or that we provide you, this may include:
• assessing your application for a product or service (or which you are a signatory, guarantor or representative for) and any future request for financial hardship assistance or support;
• confirming your eligibility for IBA’s products and services (including confirming whether you are an Aboriginal person or of Torres Strait Islander descent);
• obtaining, exchanging or verifying information about you (including with credit reporting bodies);
• managing, administering, reviewing, pricing and providing our products and services (including to you);
• providing you with training or support to help you improve your financial affairs;
• managing our relationship with you, including contacting you, identifying you, and investigating and responding to your complaints and handling any disputes with you;
• collecting any overdue repayments or amounts you owe to us, or security you have granted to us;
• minimising risks and identifying or investigating (actual or suspected) fraud and other illegal activities;
• complying with any reporting obligations to the Commonwealth or the relevant Minister;
• designing or improving our products and services, our service to you and your experience with us (including conducting or participating in internal and external audits, and collecting and analysis of research data);
• aiding in IBA’s compliance with relevant laws and regulations (such as anti-money laundering and counter-terrorism financing laws, national consumer credit protection laws, State and Territory property-related laws and taxation laws) or court orders;
• complying with disclosure requirements under any law binding on IBA; and
• managing our relationship with you, including contacting you, identifying you, and investigating and responding to any complaints or disputes with you.

What happens if we do not collect your personal information?

In order for IBA to provide, or consider providing, products or services to you IBA is required to and will collect and hold information about you including personal information. If we don’t collect your personal information, it will not be possible for us to process your application or provide you with our products or services.
You have the option of remaining anonymous or adopting a pseudonym when dealing with us, for example, if you wish to make a complaint about our products or services. However, this may limit our ability to respond to your complaint or assist you.

Who can we share your  personal information with?

Depending on the product or service that you have enquired about or that we provide to you, we may collect and disclose your personal information from and to third parties, including:
• joint borrowers, or any person whom you notify us is acting on your behalf, such as a legal or financial adviser, settlement agent, accountant, executor, trustee, guardian or attorney;
• someone who is, or who is considering being, a guarantor for any product or service we may provide to you or someone who has, or who is considering, providing security for any product or service we provide to you;
• anyone necessary to confirm information about you, including your employment, income and financial history (such as your current or previous employers, referees or Centrelink);
• Government agencies, community organisations (including land and sea councils), recognised registers or databases (such as Supply Nation) to confirm your Aboriginality or Torres Strait Islander descent;
• operators of deposit schemes and grants you have or intend applying for (such as the National Housing Finance and Investment Corporation and State or Territory Revenue Offices);
• credit enhancer, funder or any party involved in securitising your facility, including the Reserve Bank of Australia, ratings agency, re-insurers and underwriters, loan servicers, trust managers, trustees and security trustees;
• credit reporting bodies and credit providers (such as banks, credit unions, and financiers);
• courts or recognised external dispute resolution and complaint bodies including the Office of the Australian Information Commissioner, Commonwealth Ombudsman and Australian Human Rights Commission;
• any entity to whom we are required or authorised by law to disclose your personal information (for example, law enforcement agencies and government and regulatory bodies including AUSTRAC);
• our professional advisers (for example, lawyers and consultants), auditors, valuers and insurers;
• organisations involved in surveying or registering a security property or otherwise have an interest in such property;
• our service providers and their contractors (including, debt collection agencies, digital banking providers, payment service or card scheme operators and contractors who provide website, IT, marketing, administration and other services to support IBA);
• other IBA related entities and their associated entities;
• our trusted business partners and consultants;
• our Minister, Australian government bodies and agencies;
• other entities if IBA forms the view that disclosure is reasonably necessary to conduct our functions and/or to achieve our purpose under the ATSI Act; and
• with your consent – other entities or organisations.

These third parties may in turn disclose your personal information to other entities as described in their respective privacy policies or notices. Under no circumstances will IBA sell or receive payment for licensing or disclosing your personal information to third parties.

Information you give to IBA about others

If you provide IBA with information about another person, you represent:
• that you are authorised to do so; and
• that you will inform them about the contents of this Privacy Notice as it relates to them.

Will we send your personal information overseas?
From time to time, IBA may engage service providers located overseas to perform certain of our functions and activities. In the course of providing services to IBA, we may need to disclose your personal information to these service providers. In addition, some service providers may use, hold or store your personal information through a cloud service provider located overseas.

If personal information is sent, used, held or stored overseas, we will take reasonable steps to ensure that our service providers (or their overseas cloud service providers as the case may be) are carefully chosen and have policies, procedures and systems in place to ensure your personal information is otherwise handled in accordance with the Privacy Act.

How do you find out more about our privacy practices?

Our Privacy Policy describes how we protect and manage personal information, including sensitive information, consistent with our obligations under the Privacy Act. More particularly, it explains:

  • how and why we may collect your personal information
  • how it is used
  • when and how we might share it with others
  • how you can access and seek to correct your personal information
  • how to make a complaint about our privacy practices and how your complaint will be handled.

Our Privacy Policy is available at www.iba.gov.au.

How do you find out more about how we deal with your credit-related information?

Our Credit Information Policy describes how we protect and manage your credit-related information, consistent with our obligations under the credit reporting provisions of the Privacy Act. More particularly, it explains:

  • how you can access and seek to correct the credit eligibility information we hold about you
  • how you can make a complaint about our handling of your credit-related information and how your complaint will be handled
  • that we do not disclose your credit-related information to entities that are not connected to Australia.

Our Credit Information Policy is available at www.iba.gov.au.

Important Information about credit reporting bodies

If you fail to meet your obligations in relation to consumer credit, or you commit a ‘serious credit infringement’, we may be able to disclose this information to a credit reporting body.

A credit reporting body may include your credit information in reports provided to credit providers to assist in assessing your credit worthiness. Some credit reporting bodies may offer to use your credit reporting information to help credit providers send direct marketing to you about their credit services. This is known as “credit pre-screening”. You have the right to ask the credit reporting bodies not to use your information in this way.

If you reasonably believe you have been or are likely to be a victim of fraud, you are entitled to ask a credit reporting body not to use or disclose the credit reporting information they hold about you. The credit reporting bodies to whom we might disclose your information are listed below.
For contact details and information on how these credit reporting bodies manage your credit-related personal information, please see their privacy policies available at their respective links below.
• Equifax
www.equifax.com.au

• Illion
www.illion.com.au

• Corporate Scorecard
www.corporatescorecard.com.au

• Experian
www.experian.com.au

Our website (www.iba.gov.au) includes further information about credit reporting, including the credit reporting bodies to which IBA is likely to disclose your credit information.

Identifying you for AML/CTF purposes

We may provide your personal information (such as name, residential address and date of birth) to a credit reporting body or identity service provider for the purpose of verifying your identity in accordance with the requirements of the Anti-Money Laundering and Counter-Terrorism Financing Act 2006.

As part of providing that information to the credit reporting body or identity service provider, we may request them to provide an assessment or generate a report of whether the personal information matches (in whole or part) with personal information contained in a credit information file maintained by the credit reporting body or other recognised databases and registers.

Authorisation under section 191 of the ATSI Act

In addition to the Privacy Act, the ATSI Act places restrictions on the way IBA can disclose information about you. By agreeing to this Privacy Notice, you will be taken to have authorised a person to receive information or documents about you if disclosure is necessary in order for IBA to perform its functions or activities.
If you are a representative of a person who has made an enquiry or applied for a product or service (for example, you are a director, trustee or shareholder of the applicant), you represent that:
• you are authorised to deal with us on behalf of that person; and
• for the purposes of section 191 of the ATSI Act, they authorise a person to receive information or documents about them if disclosure is necessary in order for IBA to perform its functions or activities.

To find out more

To find out more about how we manage personal and credit-related information, please contact: Email: privacy@iba.gov.au  |   Tel: 1800 107 107

From time to time, we will review and revise this Collection of Personal Information Notice. We reserve the right to amend this notice at any time.

Do we use  your personal information for marketing purposes?

IBA might use your personal information (such as your contact details) to provide you with information about our other products or services. You have the right to ask IBA not to use your information for the purpose of marketing IBA products and services to you. When you apply for an IBA product or service, IBA will give you the opportunity to opt-out of receiving this marketing information. If at any time you change your mind about receiving marketing information from us, please email privacy@iba.gov.au or call 1800 107 107.