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Terms and Conditions of Online Access
(For Information Services and Internet Trading)
Effective 7 February 2007
Please also view the following Terms and Conditions required for share trading:
Terms and Conditions of Share Trading Account
Terms and Conditions of Cash Account
Terms and Conditions of Conditional Ordering
Terms and Conditions of Participant Sponsorship Agreement
In consideration of Australian Investment Exchange Ltd ABN 71 076 515 930 of Level 7, 141 St. Georges Terrace, Perth, Western Australia providing its Services to You, You agree to abide by the following terms and conditions:
1.0
DEFINITIONS
In these terms and conditions:
"AUSIEX" means Australian Investment Exchange Ltd ABN 71 076 515 930 of Level 7, 141 St. Georges Terrace, Perth, Western Australia, a Participant of the ASX Group and Australian Financial Services Licensee No 241400;
"Cash Account" means the account referred to in the Terms and Conditions Cash Account;
"Derived Information" means any part of the Information or any data derived in any way from the manipulation of the Information or any part of the Information;
"Information" means information including (but not limited to) stockmarket information, news, updates, analyses, data and research materials relating to securities to which AUSIEX has access from time to time;
"Information Providers" means the Australian Stock Exchange Limited and its related corporations, and independent providers of news, research and reporting services;
"Services" means all or any of the online services (or telephone related services accessed through the AUSIEX call centre) provided by AUSIEX from time to time;
"Trading Site" means the internet site address notified to You through which access is gained to share market trading functions;
"You" means the person, persons or company to whom AUSIEX provides the Services and to the extent relevant, includes Your authorised representative.
2.0
LIMITED RIGHT OF ACCESS
2.1
If You are more than one person, then all persons are jointly and severally bound by these terms and conditions.
2.2
You acknowledge that AUSIEX reserves the right to refuse any application to provide the Services in AUSIEX's absolute discretion.
2.3
You acknowledge that AUSIEX reserves the right to terminate or suspend Your use of the Services at any time without any reason whatsoever and without prior notice.
2.4
Your use of Services is subject to the usual access and Services guidelines and policies of AUSIEX.
2.5
AUSIEX complies at all times with all Australian law applying to any offer of securities by AUSIEX and any offer of securities is made only to Australian residents. If You are not an Australian resident then AUSIEX makes no representation whatsoever to You as to any foreign law which may apply to the offer of securities by AUSIEX. If You are in any doubt as to any foreign law applying to securities transactions by You with AUSIEX then You should obtain Your own independent foreign law legal advice.
3.0
SECURITY IDENTIFICATION
3.1
AUSIEX will provide You with a confidential password, username, PIN and keyword (collectively, "Logon ID") in order that You may identify Yourself to access the Trading Site in order to use the Services.
3.2
AUSIEX may provide You (including each and every person if there is more than one of You) and each of Your authorised representative(s) with an individual password, username, PIN or keyword, or a combination of any of these (collectively, "Individual Logon ID").
3.3
You and Your authorised representative(s) are solely responsible for the confidentiality and use of Your Logon ID and Individual Logon ID. You will notify AUSIEX immediately if You become aware of any loss or theft or unauthorised use of Your Logon ID or any Individual Logon ID or any part thereof. After such notification AUSIEX shall as soon as reasonably possible disable access to the Trading Site and Services for such Logon ID or Individual Logon ID and shall issue a replacement Logon ID or Individual Logon ID accordingly.
3.4
AUSIEX is entitled to assume that any instruction received containing all or any part of the Logon ID or Individual ID originates from You or the authorised representative to whom the Logon ID or Individual ID is assigned and that such instruction is a valid instruction to access the Services. AUSIEX is not obliged to inquire into the validity of any such instruction received.
3.5
AUSIEX deems that the person using an Individual Logon ID or any part of it to access the Trading Site and the Services is the person to whom the Login ID is assigned to.
4.0
YOUR INSTRUCTIONS
4.1
AUSIEX reserves the right at all times to decline to accept Your instructions without giving any reason or explanation or prior notice.
4.2
Without limitation to clause 4.1 AUSIEX reserves the right to decline to act on Your behalf or accept Your instructions where Your instructions are believed by AUSIEX to be unclear, ambiguous or incomplete.
4.3
You authorise AUSIEX to accept instructions on Your behalf from Your authorised representative(s) and You confirm that Your authorised representative(s) has/have the power to do the following in Your name and on Your behalf from time to time to:
| (a) |
give instructions to AUSIEX on Your behalf; and |
| (b) |
access the Trading Site and use the Services. |
4.4
You agree to ratify and confirm all actions carried out by AUSIEX on the instructions of Your authorised representative(s).
4.5
When You are more then one person, AUSIEX may accept instructions from one or more of You on behalf of all of You.
4.6
You agree that all risk and liability for any unauthorised instructions or fraud lies with You alone and that You will indemnify AUSIEX from all loss, costs and expenses arising from such unauthorised instruction or fraud.
4.7
AUSIEX has the right to request written confirmation of instructions before acting on any instructions from You or Your authorised representative(s).
4.8
AUSIEX may assume the authenticity of any instructions given or purportedly given orally, in writing or by electronic means (including any electronic instructions which include all or any part of Your Logon ID or Individual Logon ID) by You or Your authorised representative(s), or that any person claiming to be Your authorised representative is in fact that person. AUSIEX is not obliged to enquire into any of the matters mentioned in this condition and You authorise AUSIEX to act upon such instructions believed by AUSIEX to be authentic.
4.9
AUSIEX will use its best endeavours to execute Your instructions, but AUSIEX will not guarantee that Your instructions will be wholly or partially executed or will be executed by a certain time.
4.10
You authorise and appoint AUSIEX, each of its directors and employees as Your attorney to enter into any contract or agreement with another party on Your behalf upon receiving Your instructions (such instructions may be given by You electronically and accepted by AUSIEX in accordance with clause 4.8) to do so. You acknowledge that all liability for such contracts are Yours alone. You will indemnify AUSIEX against all loss, expense or any other liability in relation to such contracts or agreements.
4.11
You authorise AUSIEX to record any telephone communications between Yourself, Your authorised representative(s) and AUSIEX, with or without an audible tone-warning device.
4.12
In case of dispute, AUSIEX's records of electronic or telephone communications or facsimile transmission shall be conclusive evidence of the details of the communications by email, internet, telephone or facsimile (as the case may be) between You and AUSIEX.
5.0
ACKNOWLEDGEMENTS AND REPRESENTATIONS
5.1
If You are a trustee or an agent, You are bound by these terms and conditions as a trustee or an agent, and personally. If You are a corporation, the directors are also bound by these terms and conditions.
5.2
You warrant that You have the power and the authority to agree to these terms and conditions, and to carry out Your obligations under them. If You are a corporation, You warrant that You hold a valid ACN, ABN or ARBN.
5.3
You authorise AUSIEX to provide information about You to any of its related entities and their respective officers and employees (for accounting and other purposes, including marketing further services to you). If you have been referred to AUSIEX by a third party ("Referrer") for AUSIEX to provide You with trading, settlement, clearing or other services, You also authorise AUSIEX to supply information about You (that AUSIEX may collect or hold from time to time) to the Referrer. The information may include, but is not limited to: details of orders placed and trades entered into by You, other transactions conducted by You through or in connection with the Trading Site, and other information concerning You that AUSIEX may receive from Your use of the Trading Site or any associated website, but excluding Your PIN and security details. You authorise the Referrer to use Your information to calculate any commissions due to it from AUSIEX based on trades and services entered into by You by AUSIEX, and for use by the Referrer in marketing further services to You.
6.0
USE OF INFORMATION
6.1
You must not either alone or in conjunction with any other person:
| (a) |
supply or make available or permit to be supplied or made available the Information or Derived Information to any third person; |
| (b) |
store, process or deal with the Information or Derived Information in any way except for Your own personal use; |
| (c) |
allow any unauthorised person to gain access to the Information or Derived Information; or |
| (d) |
use the Information or Derived Information to establish, maintain or provide (or assist in establishing, maintaining or providing) an unauthorised market for trading in securities. |
6.2
You acknowledge that the use or access of the Trading Site will not be free from any fault, error or defects in design or engineering.
6.3
You acknowledge that the transmission speed, format or content of the Information and Derived Information may be changed without any prior notice.
6.4
You acknowledge that:
| (a) |
the Information and Derived Information has been prepared and distributed for general information only, and is without consideration to Your or any person's investment objectives, financial situation or particular needs; |
| (b) |
the Information and Derived Information is not a recommendation that a particular course of action is suitable for You or any person; and |
| (c) |
the Information and Derived Information may not be appropriate to You and that any decision made by You is based on Your own judgement or on independent advice, but in no case relies on the Information or Derived Information or any part of it. |
7.0
FEES
7.1
You agree to pay subscription fees, royalty charges and any other charges as specified by AUSIEX from time to time. You also agree to reimburse AUSIEX for any fees, taxes, consumption or value-added tax or any other charges levied in relation to the Services. AUSIEX reserves the right to vary such fees and charges, and the method of charging at any time, without prior notice.
7.2
If the goods and services tax ("GST") has application to the supply of Services by AUSIEX, AUSIEX will in addition to any amount or consideration payable under these terms and conditions, recover from You an additional amount on account of the applicable GST.
7.3
You agree that AUSIEX may receive commissions from any other party arising from Your use of the Services and AUSIEX is not obliged to rebate these commissions to You.
7.4
You agree that AUSIEX may pay commissions on brokerage received by AUSIEX from You based on trades entered into by You.
7.5
You irrevocably authorise AUSIEX to deduct from You from any Cash Account You have established through AUSIEX, or through any credit card authority or direct debit bank account authority provided by You such amounts owing by You to AUSIEX or a related entity of AUSIEX.
8.0
RELEASE
8.1
You release AUSIEX, any third party service provider, the Information Providers and their respective employees and agents from any obligation or liability of any kind to or through You with respect to the transmission, provision, or use of the Services, the Information or Derived Information or any part thereof and, without limiting the generality of the foregoing, for any delays, interruptions, errors or omissions howsoever occasioned (including negligence).
8.2
To the maximum extent permitted by law, You acknowledge that AUSIEX, any third party service provider, the Information Provider, and their respective employees and agents will not be liable to You or anyone else for any loss or damage, whether direct or indirect, special, incidental or consequential or economic (including loss of profits), whether or not AUSIEX knew or could have known of the possibility of such damage, where that damage arises from:
| (a) |
delay, interruption, omission, failure, error or fault in the execution of Your instructions (including negligence); |
| (b) |
delay in the execution of Your instructions arising from a review of Your instructions by AUSIEX; |
| (c) |
any error, omissions, non-receipt or invalidity in Your instructions; |
| (d) |
any fault, error, defect or engineering of the Trading Site or AUSIEX's computer systems, or any delay, fault, failure in or loss of access to the Trading Site; and |
| (e) |
any cause beyond the reasonable control of AUSIEX, including but not limited to, failure of electronic or mechanical equipment or communication lines, unauthorised access or labour problems. |
8.3
AUSIEX, any third party service providers, the Information Providers and their respective employees and agents do not give any representations or warranties as to the availability, accuracy, completeness, currency or reliability of the Information or Derived Information, or the results to be obtained from the Information or Derived Information; and AUSIEX expressly disclaims all and any liability (including negligence for any act or omission) to You or any person for any damage or loss (direct or indirect, special, incidental or consequential or economic) resulting from the use of or reliance on the Information or Derived Information or any part thereof by You or any other person.
8.4
Nothing in sub-clauses 8.1, 8.2 and 8.3 shall exclude any implied condition or warranty the exclusion of which would contravene any statute or cause any part of these terms and conditions to be void or invalid.
8.5
To the extent permitted by law, any liability to You for any reason is limited to the restoration of the Service to You, but if that is not possible or appropriate, then the refund of the fees paid by You in relation to the supply of Information or Derived Information for the month in which the cause of liability arises.
9.0
INTELLECTUAL PROPERTY RIGHTS
9.1
You acknowledge that all copyright and other intellectual property rights of whatever nature in the Information and Derived Information, and the electronic means of transmission of the Information and Derived Information, are and will remain vested in AUSIEX or the Information Providers or any of them. You will promptly notify AUSIEX of any improper or unlawful use of the Information or Derived Information or infringement of any of the copyright or other intellectual property rights in the Information or Derived Information that comes to Your notice.
10.0
VARIATION, TERMINATION AND ASSIGNMENT
10.1
You may terminate Your access to the Trading Site and Services by giving not less than five (5) business days written notice to AUSIEX. Termination will not affect any rights or obligations accrued prior to termination.
10.2
AUSIEX may terminate Your access to the Trading Site and Services at any time and without prior notice, subject to all outstanding obligations being duly discharged.
10.3
AUSIEX may at any time change the terms and conditions applying to Your Account. AUSIEX will notify You of changes by giving You at least 5 clear business days notice before the change takes effect. AUSIEX will either write to You (by email or mail) or place an advertisement in The Australian Newspaper. Any continued use by You and Your Account and its services is an acceptance of the variation.
10.4
However, AUSIEX does not need to give You advance notice where any variation of these terms and conditions is required to comply with a prescribed requirement or is necessitated by an immediate need to restore or maintain the security of the system or individual accounts.
10.5
AUSIEX may assign any or all of its rights or obligations under this agreement at any time, without your prior consent.
10.6
Your rights and obligations under this agreement and otherwise in respect of your use of the Service must not be assigned (whether at law, in equity or otherwise) or made the subject of an encumbrance, trust or fiduciary obligation without AUSIEX's prior written consent, which consent AUSIEX may give or withhold, or give subject to any conditions as AUSIEX may determine, in AUSIEX's absolute discretion.
11.0
NOTICE
11.1
Any notice given, or demand made by AUSIEX, may be made by facsimile, by post or by email to the last notified address, facsimile number or email address as the case may be. Such notice or demand shall be deemed to have been received:
| (a) |
if given by post will be deemed to have been received on the third Business Day following posting; |
| (b) |
if given by facsimile, will be deemed to have been received upon production of a transmission report by the machine from which the facsimile was sent which indicates that the facsimile was sent in its entirety to the facsimile number of the recipient; |
| (c) |
if given to you electronically will be deemed to have been received upon delivery (and a delivery report received by us will be conclusive evidence of delivery even if the communication is not opened by you); and |
| (d) |
if given to us electronically will be deemed to have been received upon being opened by us. |
12.0
DISPUTE RESOLUTION
12.1
Any disputes between You and AUSIEX will be referred to the Financial Industry Complaints Service ("FICS") if the dispute is within the jurisdiction of FICS. If the dispute is not within the jurisdiction of FICS, or cannot be settled through its processes, the parties will appoint a mediator and attend mediation in order to resolve the dispute.
13.0
APPLICABLE LAW
13.1
This Agreement shall be governed by the laws of the State of Victoria, and the parties submit to the jurisdiction of that State, but AUSIEX may commence proceedings in another competent jurisdiction.
14.0
FAIR GO POLICY
14.1
You acknowledge that You have read and understood AUSIEX's "Fair Go Policy" contained on the Trading Site. You agree that You will access and use the Trading Site in accordance with the Fair Go Policy (as amended from time to time). In particular, by accessing the Trading Site You agree and acknowledge that:
| (a) |
all free access to the Trading Site and other services is subject to reasonable usage; and |
| (b) |
if at any time AUSIEX in its discretion considers a customer's usage to be unreasonable, AUSIEX may suspend or refuse access to its services, including the Trading Site. |
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