Standard Terms for the Provision of Services and Equipment
Paritech Wealth Technology Pty Ltd ABN 78 099 047 364 (PWT) provides financial information services (Services) and may also at times provide hardware and software (Equipment) for using those Services under the name “Pulse”. This describes the terms on which PWT provides the Services and Equipment to the Customer.
PWT will provide the Services to the Customer on the terms set out in this Agreement. PWT grants the Customer a non-
Accuracy of information
PWT makes no representation or warranty in respect of the timeliness, reliability, accuracy or completeness of the Data. PWT accepts no responsibility for any errors in or omissions from the Data.
Where the Customer is an ASX Market Participant and PWT provides restricted information on the basis of that status the Customer will: –
(a) comply with all rules and regulations of ASX Limited;
(b) maintain that status for the duration of the period during which PWT provides that information; and
(c) indemnify PWT against any loss or liability which arises because the Customer either breaches any rules of ASX Limited or ceases to be an ASX Market Participant.
The Customer warrants that it has the legal capacity to enter into and perform the Customer’s obligations under this agreement.
A Customer who enters an order or effects a transaction using the System is taken to warrant: –
(a) the Customer has capacity and authority to enter the order and effect the transaction;
(b) the order complies with all relevant laws and regulations, including without limitation those administered by the Australian Stock Exchange and Australian Securities and Investments Commission;
(c) the Customer is capable of evaluating the nature, merits and risks of the transaction;
(d) PWT has not provided any financial product advice in respect of the transaction.
No Customer will allow any person other than an Authorised User to use the System to effect transactions in securities.
The Customer must identify Authorised Users by a method acceptable to PWT. The Customer may authorise a third party to access the Services on the terms set out in this agreement. The Authorised User’s transactions are taken to be the Customer’s transactions. The authorisation must be in writing, prohibit the user from authorising third parties to access the Services and require the user to perform and observe the terms set out in this agreement.
Restrictions on use of the System and Data
No Customer may –
(a) resell the Services (including any data) to any third party;
(b) allow any third party access to the Services (or data) including by means of the internet (other than an Authorised User);
(c) copy, republish, re-
(d) use the System or any Data in any manner or for any purpose that is unlawful or in any manner that violates any right of PWT;
(e) restrict or inhibit any other user from using the System or any Data;
(f) post or transmit during access to the System any unlawful, threatening, abusive, defamatory, obscene, vulgar, pornographic, profane or indecent information of any kind, including, without limitation, any act which may constitute or encourage anyone to commit a criminal offence, or which may give rise to civil liability or may otherwise violate any law;
(g) post or transmit during access, to the System, anything which contains, or may contain a virus or other contaminating or destructive property to Software;
(h) delete or amend any statement or other information on the System or tamper with the System or attempt to do so;
(i) give either a log on ID, password or both to any other person, or allow any other person to access the System using your access details without PWT’s express written permission; or
(j) copy or modify any of the documentation accompanying the software in any manner not expressly authorised by this Agreement.
The Services include data sourced from third party providers
The Customer will comply with all conditions that a third party imposes on the access to, or use of, its data.
The Customer acknowledges that –
(a) a third party may amend those conditions without notice; and
(b) a third party data provider may require the Customer to enter into an agreement to provide that data.
PWT will notify the Customer if PWT is no longer able to provide third party data in accordance with the Agreement. A third party data provider may require the Customer to enter into an agreement to provide that data.
This clause 5.9 applies when Customer effects a short sale which is permitted under section 1020B, Corporations Act 2001. The Customer must designate the order as a short sale by entering the appropriate code when entering the order.
A Customer who enters an order for a short sale on the System will be taken to have represented to PWT that the Customer has complied with all regulatory requirements in respect of that transaction.
No Customer may provide order routing, order tracking, automatic execution or similar functions without PWT’s prior written consent. Where PWT permits a Customer to use an Interface to enter orders on the System, the Customer will instruct each employee to enter orders only under the User Identification Number allocated to them.
No Customer may –
(a) if it is a Market Participant permit its clients to route orders directly or indirectly into the System;
(b) if it is not a Market Participant participate in any of the activities described in paragraph (a); or
(c) use any Interface, including but not limited to an Interface that PWT permits, to create or store orders that do not appear on the System but are programmed to respond automatically to orders on the System.
The Customer agrees to indemnify PWT and\or each user or third person on the contra side of any executed trade, from and against –
(a) any loss or expense that any of them incur in dealing with any claim against, including without limitation, any claims in respect of the use of the System by an Authorised User, it including legal costs and expenses on a solicitor and own client basis; and
(b) any Taxes that any of them incur in consequence of the Customer performing its obligations under this agreement arising from any action or omission in connection with this agreement, or any breach by the Customer of any obligations or warranties under this agreement, irrespective of whether there was fault on the part of the person whose conduct gave rise to that liability, loss, damage or expense.
The liability of the Customer to indemnify each party under this agreement will be reduced proportionately to the extent that any negligent act or omission of the Customer contributed to the relevant liability for damage or expense.
Each party’s right to be indemnified under this agreement is in addition to, and not inclusive of, any right, power or remedy provided by law. However, PWT is not entitled to be compensated in excess of the amount of the relevant liability, loss or damage or loss or expense. The indemnity under this clause is a continuing indemnity and survives the termination or expiry of this agreement.
Neither PWT nor any Data Provider will be liable to the Customer or any User for any loss or liability in respect of the Services. “Loss or liability” means any loss of profit or business revenue, reputation, goodwill, business use, anticipated savings loss or corruption of data or any costs, damages or claims or any other indirect or consequential loss or damage that the Customer suffers, including without liability loss or liability arising in respect of the negligence of a Data Provider.
Limitation on liability
PWT nor any Data Provider will be liable for any loss or damage arising out of the use or receipt of the Services or any Data including, without limitation, arising out of or in connection with any fault, error, interruption, delay, omission or failure (whether within or beyond PWT’s control or the control of any third party data contributor); or any inaccuracy, error, omission or incompleteness of the Data; or any negligent act or omission of PWT or any Data Provider. PWT will implement reasonable security arrangements in respect of the access of PWT, its employees or agents.
However, PWT will not be liable for any loss or damage that the Customer suffers arising from access to those information technology systems.
Subject to this agreement any term which is implied by law in respect of the supply of goods or services under this agreement is excluded.
What happens when the implied term cannot be excluded?
Where and when legislation implies any condition or warranty that legislation voids or prohibits any term in a contract excluding or modifying the application of or exercise of or liability under that condition or warranty that condition or warranty is taken to be included.
Limitation of liability when the implied term cannot be excluded
If the breach of a warranty or condition relates to goods PWT’s liability will be limited at PWT’s option to:-
(a) the replacement of the goods;
(b) the repair of the goods;
(c) the payment of the cost of replacing the goods or acquiring equivalent goods; or
(d) the payment of the cost of having the goods repaired.
If the breach of a warranty or condition relates to services, PWT’s liability will be limited at PWT’s option to –
(a) the supply of the services again; or
(b) the payment of the cost of having the services supplied again.
The liability of a party (‘the first party’) for loss or damage sustained by the other party will be reduced proportionately to the extent that such loss or damage has been caused by the other party’s failure to comply with its obligations and responsibilities under this agreement and/or to the extent that the negligence of the other party has contributed to such loss or damage, regardless of whether a claim is made by the first party for breach of contract or for negligence.
Contributory negligence will survive the termination or expiry of this agreement.
Where one party –
Note Section 9 of the Corporations Act 2001 (Cth) defines when a company is an externally administered body corporate or assigns or purports to novate its rights otherwise than in accordance with the agreement.
The parties acknowledge that a series of minor breaches may constitute a ‘material breach’.
The Agreement constitutes the entire agreement between PWT and the Customer in respect of the subject matter of this agreement and merges all previous discussions between them.
A waiver by a party of a breach will not be regarded as a waiver of any other breach. A failure by a party to enforce a provision will not be interpreted as a waiver (unless the waiving party confirms in writing that a waiver was intended).
Agreement means the agreement for the supply of the Services and the Equipment comprising these Standard Terms.
Authorised User –