Rate Sheet Terms and Conditions
The Rate Sheet Subscriber uses the data provided by the Company for its own internal purposes.
The Company will provide the data to the Rate Sheet Subscriber or grant the Rate Sheet Subscriber access to the Data solely for its own internal purposes and the Rate Sheet Subscriber will not be permitted to distribute the data outside of their own organisation.
Sydney, NSW, 2000
1 Rights of access to Data
1.1 Permission to access and use the Data
(a) The Company hereby grants permission for the Rate Sheet Subscriber to access and use the Data, in whole or in part, solely for its own internal purposes and the Rate Sheet Subscriber will not be permitted to distribute the data outside of their own organisation (“Permitted Use’).
(b) The Rate Sheet Subscriber acknowledges and agrees that it is not authorised to access, use, copy or modify the Data or the Web Portal otherwise that in accordance with the Permitted Use.
(c) The Data will be delivered to the Rate Sheet Subscriber in accordance with Schedule 3 or such other means as notified by the Company to the Rate Sheet Subscriber from time to time.
(d) The Company will supply and maintain the Web Portal and provide any necessary IP address, certificates, usernames and passwords required to access the Web Portal. The Rate Sheet Subscriber must securely store any such access information provided by the Company, and will be responsible for the consequences of the use of any the access information (regardless of whether the use occurred with or without the knowledge or approval of the Rate Sheet Subscriber).
1.2 Conditions on access to Web Portal
(a) The Rate Sheet Subscriber must at its own expense, install and maintain all Equipment required to retrieve and use the Data from the Web Portal.
(b) The Rate Sheet Subscriber must not:
(i) violate any system or network security measures instituted by the Company to protect the Data, or engage in unauthorised access or use of the Web Portal or any other Company network, data or information;
(ii) post or transmit any information or software on the Web Portal which contains a virus, ‘cancelbot’, ‘trojan horse’, ‘worm’ or other harmful or disruptive component; or
(iii) use the Web Portal to upload or download, post, publish, retrieve, transmit, or otherwise reproduce, distribute or provide access to information, software or other material which is:
(A) confidential or protected by copyright or other Intellectual Property Rights, without prior authorisation from the rightholder(s); or
(B) defamatory, obscene, a breach of Privacy Laws or otherwise unlawful.
1.3 Right to suspend or revoke access
The Company may prevent the Rate Sheet Subscriber from accessing the Data without notice and at the sole discretion of the Company if:
(a) the Rate Sheet Subscriber notifies the Company, or the Company reasonably believes that, the Rate Sheet Subscriber’s login credentials have been compromised;
(b) the Rate Sheet Subscriber breaches any of the terms of this Agreement;
(c) the Company is required to undertake repair, maintenance or service of any part of the Web Portal;
(d) suspension of the Web Portal is reasonably required to reduce or prevent fraud or interference with the Data; or
(e) the Company is required to comply with an order, instruction or request of a Regulatory Authority.
1.4 Right to limit or control speed of access
If at any time the Company experiences exceptional data traffic conditions or other actual or potential capacity limitations on its networks, then in order to protect the integrity and performance of those networks, the Company is entitled to throttle, limit or otherwise control the speed of delivery of the Data and/or the quantity of Data delivered to the Rate Sheet Subscriber for such a period as it deems reasonably necessary.
1.5 Right to vary terms of supply
The Company may, in its sole discretion, vary the terms of supply of the Data as provided for under this Agreement. Any such variation will be notified in writing to the Rate Sheet Subscriber and will be published on the Company’s website.
1.6 No exclusivity
Nothing in this Agreement prevents the Company from entering into an arrangement to supply the Data, directly or indirectly, to any other person.
2.1 Help desk
During the Term, the Company will provide the Rate Sheet Subscriber with access to a help desk staffed by personnel, during the Company’s Business Hours, who are able to confirm the status of the Web Portal and escalate any observed faults to the relevant staff within the Company. For the avoidance of doubt, no specific response guarantee is made with regard to this support.
3 Intellectual Property Rights
3.1 Rights in the Data
The Company and its licensors retain all ownership rights, including all Intellectual Property Rights, in and to the Data.
3.2 Anticipated infringement
If a third party claims or in the Company’s reasonable opinion is likely to claim that the Rate Sheet Subscriber’s use of the Data in accordance with this Agreement infringes such party’s Intellectual Property Rights, the Company may, at its sole discretion and expense either:
(a) procure for the Rate Sheet Subscriber the right to continue to use the Data under the terms of this Agreement;
(a) replace or modify the Data in such a way as to make such use of such Data non-infringing,
and if the Company is unable to comply with (a) and (b) after making all commercially reasonable efforts to do so, the Company may terminate this Agreement with respect to such Data.
3.3 Exclusive remedies
(a) The remedy set out in clause 3.2 sets out the Company’s entire liability, and the Rate Sheet Subscriber’s remedy, in the event that the Data becomes the subject of any Intellectual Property Rights infringement claim.
4 Warranties and representations
4.1 Capacity of the parties
The Rate Sheet Subscriber represents and warrants on the date of this Agreement that:
(a) it has full power and authority to enter into and perform its obligations under this Agreement;
(b) it has taken all necessary action to authorise the execution, delivery and the performance of this Agreement; and
(c) the Agreement constitutes legal, valid and binding obligations enforceable in accordance with its terms.
4.2 Quality, accuracy, completeness etc of Data
The Company aims to compile the Data from sources it considers reliable. However, the Company does not warrant that the quality of the Data, and to the fullest extent permitted by law, the Data is provided “as is”, without warranty or guarantee of any kind, express or implied, as to:
(a) the merchantability or fitness of the Data for a particular purpose; or
(b) the accuracy, completeness, quality or continuity of the Data.
4.3 Exclusion of warranties
Except as specifically set forth in this Agreement, there are no representations, warranties, or conditions, express or implied, in respect of this Agreement or the Data. The Company does not guarantee the availability of the Data or any website or Web Portal used to transmit the Data, or that the Data will be error-free or free from viruses or other harmful code.
5 Liability and indemnity
5.1 Limitation on liability
(a) To the extent permitted by law, the Company excludes all liability to the Rate Sheet Subscriber in contract, tort (including negligence), under any statute or otherwise for any loss (direct or indirect) or damage arising from or in any way connected with this Agreement or the Data, including:
(i) any failure of, or malfunction in, access to the Data or the telecommunications system connected to it or the Web Portal;
(ii) any inoperability or malfunction of the Rate Sheet Subscriber’s or the Company’s software or its installation, maintenance or removal;
(iii) the transmission, receipt or relay of Data to the Rate Sheet Subscriber;
(iv) any delays, interruptions, errors or omissions in collecting, recording, processing, storing or disseminating Data or other information; or
(v) any investment decisions or transactions made by the Rate Sheet Subscriber based on the information contained in the Data.
(b) For the avoidance of doubt, nothing in this Agreement operates to limit or exclude:
(i) the Rate Sheet Subscriber’s indemnification obligation under clause 5.3; or
(ii) liability of the Rate Sheet Subscriber for any breach of clause 7.
(c) If the Company is liable to the Rate Sheet Subscriber for loss or damage of any kind (including loss or damage caused by negligence or breach of contract), this liability is reduced to the extent that the Rate Sheet Subscriber caused or contributed to the loss or damage.
5.2 Consumer rights
Notwithstanding clause 5.1, the parties acknowledge and agree that:
(a) if anything arising out of or connected with this Agreement constitutes a supply of services to the Rate Sheet Subscriber as a consumer, then the Rate Sheet Subscriber may have the benefit of certain rights and remedies pursuant to the Competition and Consumer Act 2010 (Cth) or the Australian Securities and Investments Commission Act 1989 (Cth) and similar state and territory laws in Australia, or the Consumer Guarantees Act 1993 (NZ) in New Zealand, in respect of which liability may not be excluded or restricted;
(b) nothing in this Agreement will exclude or restrict any non‑excludable rights or remedies referred to in subclause (a) above; and
(c) insofar as such liability may not be excluded, then to the maximum extent permitted by law, such liability is limited, at the Company’s exclusive option, to:
(i) resupply of the services; or
(ii) payment of the cost of having the services supplied again.
5.3 Rate Sheet Subscriber indemnity
The Rate Sheet Subscriber indemnifies, as a continuing indemnity, the Company from and against any loss, damage or liability (including its legal costs and other expenses) reasonably incurred or suffered by the Company arising from or in connection with:
(a) any unlawful, dishonest, fraudulent or negligent act or omission or wilful misconduct of the Rate Sheet Subscriber; or
(b) the Rate Sheet Subscriber’s access to and use of the Data, including any loss arising from any financial decisions made in reliance on the Data.
6.1 Acknowledgements by Rate Sheet Subscriber
The Rate Sheet Subscriber acknowledges and agrees, to the extent permitted by law, that:
(a) the Company makes no warranty as to the accuracy, completeness or suitability of the data and accepts no liability or responsibility for errors, omissions or misstatements, negligent or otherwise;
(b) the Company does not provide any legal, tax, accounting, securities or investment advice whatsoever;
(c) the Company is under no obligation to verify, update or correct any Data;
(d) the Data may be based on assumptions or market conditions and may change without notice;
(e) prices included in the Data are indicative averages only;
(f) the Rate Sheet Subscriber is solely responsible for forming their own independent judgements, interpretations, conclusions, and deductions about any Data;
(g) no part of the data is to be constructed as an offer to buy or sell securities or as a solicitation or recommendation to make a financial investment or divestment;
(h) the Company in preparing the Data did not take in to account the investment objectives, financial situation or needs of any particular investor;
(i) each investor should seek their own independent financial advice before relying on the Data. Yieldbroker accepts no responsibility for any losses suffered in reliance on the Data; and
(j) the Data may not be used by a retail client.
7.1 Disclosure of Confidential Information
(a) The Rate Sheet Subscriber must not disclose the Company’s Confidential Information to any person except:
(i) on a confidential basis, to its Employees requiring it for the purposes of this Agreement or to enable the Rate Sheet Subscriber to obtain professional advice in relation to this Agreement;
(ii) with the consent of the Company;
(iii) if the Rate Sheet Subscriber is required to do so by law (including any condition of a Market license) or by a lawful requirement of any government or governmental body, authority or agency having authority over the Recipient or by a stock exchange; or
(iv) if the Rate Sheet Subscriber is required to do so in connection with legal proceedings relating to this Agreement or other agreement between the parties.
(b) The Rate Sheet Subscriber:
(i) must not use the Company’s Confidential Information except for the purpose of exercising the Rate Sheet Subscriber’s rights or performing its obligations under this Agreement;
(ii) must ensure that any person to whom Confidential Information is disclosed pursuant to clause 7.1 (a) complies with all obligations imposed on the Rate Sheet Subscriber under this Agreement and the Rate Sheet Subscriber is liable for such person’s breach of this clause 7 as though it is the breach of the Rate Sheet Subscriber; and
(iii) must use reasonable efforts to provide the Company with written notice prior to disclosure required by clause 7.1 (a) (iii) or (iv), so that the Discloser can seek a protective order or other appropriate remedy.
7.2 Return of Confidential Information
On the Company’s request, the Rate Sheet Subscriber must use commercially reasonable efforts to deliver to the Company or destroy all documents or other materials containing or referring to the Confidential Information which are in its possession, power or control; or in the possession, power or control of persons who have received Confidential Information from the Rate Sheet Subscriber except to the extent that:
(a) the Rate Sheet Subscriber requires the Confidential Information for the purpose of performing its obligations or exercising its rights under this Agreement; or
(b) the Rate Sheet Subscriber is otherwise entitled to retain the Confidential Information.
7.3 No disclosure of the terms of this Agreement
Except as otherwise agreed or required by law, any regulatory authority or stock exchange, neither party may disclose the terms of this Agreement to any person except as permitted under clause 7.1.
7.4 Injunctive Relief
The Rate Sheet Subscriber recognises that the Company would incur irreparable harm from a material breach of this clause 7 and that monetary damages would be inadequate to compensate for such breach. The Rate Sheet Subscriber agrees, therefore, that if it shall commit such a breach, the harmed party shall be entitled to the entry of an injunction or other equitable relief and that such non-complying party shall not object to such injunction or equitable relief on the basis that there exists an adequate remedy at law or that injunctive remedies should not otherwise be available to remedy a breach. This remedy shall be in addition to any other remedies available to the Company. Nothing in this clause 7 shall limit the right of the Company to contest any facts or make any legal argument relating to the existence of any breach or threatened breach of this clause 7.
8 Term and termination
Subject to this clause 8 this Agreement will take effect from the date of this Agreement and continue indefinitely unless the parties give written notice of termination in accordance with clause 8.
8.2 General rights to terminate
Either party may terminate this Agreement by notifying the other party by notice in writing to the other party on the occurrence of any of the following events:
(a) if the other party breaches any of the terms of the Agreement and the breach is material, and:
(i) the breach is not capable of being cured; or
(ii) the breach is capable of being cured and the other party fails to cure the breach within 30 days of being notified in writing of the breach by the terminating party, or
(b) if the other party:
(i) becomes insolvent or insolvent under administration;
(ii) has a Controller appointed, or is in liquidation, in provisional liquidation, under administration or wound up or has had a Receiver appointed to any part of its property;
(iii) is subject to any arrangement, assignment, moratorium or composition protected from creditors under any statute or dissolved (in each case, other than to carry out a reconstruction or amalgamation while solvent on terms approved by the other parties to this Agreement);
(iv) is otherwise unable to pay its debts when they fall due; or
(v) if applicable, something having a substantially similar effect to any or all of clauses 8.2 (b) (i)-(iv) occurs in connection with that person under the law of any jurisdiction;
and such termination will be effective on the date of receipt of the written notice of termination.
8.3 Breach of confidentiality clause
For the purposes of clause 8.2 (a), a breach of clause 7 is a material breach of this Agreement.
8.4 Termination for convenience
Either party may terminate this Agreement at any time by giving the other party not less than 1 month’s prior written notice of its intention to terminate.
8.5 Additional grounds to terminate for the Company
In addition to the grounds for termination pursuant to clauses 8.2 and 8.4, the Company may terminate this Agreement by notice in writing to the Rate Sheet Subscriber if the Rate Sheet Subscriber fails to pay the fees due under clause 9.1.
8.6 Additional grounds to terminate for the Rate Sheet Subscriber
In addition to the grounds for termination pursuant to clauses 8.2 and 8.4, the Rate Sheet Subscriber may terminate this Agreement by notice in writing to the Company if the Company varies the terms of supply of the Data in accordance with clause 1.5 of this Agreement and the Rate Sheet Subscriber does not agree to those varied terms.
8.7 Consequences of termination or expiration
On expiry or termination of this Agreement for any reason:
(a) the Rate Sheet Subscriber must return or destroy all Data in its possession, custody or control;
(b) without limiting clause 8.7(a), each party will deal with Confidential Information of the other party in accordance with clause 7.2;
(c) all rights and permissions granted under this Agreement, including the use of the Data are revoked; and
(d) each party’s rights and obligations and the terms and conditions of this Agreement will survive in accordance with clause 9.10.
9.1 Fees and GST
The Rate Sheet Subscriber must pay fees to the Company in accordance with Schedule 2. Unless specified to the contrary, the fees are exclusive of all taxes (including GST).
The Rate Sheet Subscriber or may not assign, encumber or declare a trust in relation to all or any of its rights under this Agreement without the prior consent of the Company.
(a) Subject to clause 9.3 (f), a notice, approval, consent or other communication in connection with this Agreement:
(i) may be given by an authorised officer of the relevant party;
(ii) must be in writing in the English language;
(iii) subject to clause 9.3 (b), must be marked for the attention of the person identified in the Details section of this Agreement in relation to that party or if the party has notified otherwise, then marked for the attention of the relevant person last notified; and
(iv) must be left at the address of the addressee, or sent by email to the email address of the addressee which is specified in this Agreement or, if the addressee notifies another address or email address, then to that address or email address (as applicable).
(b) Communications sent by email:
(i) need not be marked for attention in the way stated in clause 9.3 (a) (iii). However, the email must state the first and last name of the sender; and
(ii) are taken to be signed by the named sender.
(c) Unless a later time is specified in it a notice, approval, consent or other communication takes effect from the time it is received except that, if it is received after 5.30pm Sydney time in the place of receipt or on a non-working day in that place, it is to be taken to be received at 9.00am Sydney time on the next succeeding working day in that place.
(d) An email is taken to be received:
(i) when the sender receives an automated message confirming delivery; or
(ii) four hours after the time sent (as recorded on the device from which the sender sent the email) unless the sender receives an automated message that the email has not been delivered,
whichever happens first.
(e) Each party indemnifies, as a continuing indemnity, the other party from and against any liability or loss reasonably incurred or suffered as a direct result of, and any costs incurred in connection with, the other party acting in connection with this Agreement in good faith in reliance on email communications purporting to be sent by the party in accordance with this clause 9.3.
(f) A notice approval, consent or other communication in connection with a breach or termination of this Agreement cannot be sent by email.
9.4 Force majeure
A party will not be in default under this Agreement due to any failure or delay in performing its obligations due to causes beyond its reasonable control, including acts of God, natural disasters, war (declared or undeclared), civil insurrection, sabotage, malicious damage, terrorism or civil unrest, acts of any government in any capacity, or a labour dispute other than a labour dispute that only involves the party’s personnel.
9.5 No partnerships
Nothing contained or implied in this Agreement constitutes a party, the partner, agent, or legal representative of another party or any purpose or creates any partnership, agency or trust, and no party has any authority to bind another party in any way.
No rule of construction applies to the disadvantage of a party because that party was responsible for the preparation of, or seeks to rely on, this Agreement or any part of it.
This Agreement may be executed in counterparts. All counterparts when taken together are to be taken to constitute one instrument
9.8 Governing law, jurisdiction and service of process
(a) This Agreement is governed by the law in force in New South Wales and each party irrevocably and unconditionally submits to the non-exclusive jurisdiction of the courts of New South Wales and courts of appeal from them. Each party waives any right it has to object to an action being brought in those courts.
(b) Without preventing any other mode of service, any document in an action (including any writ of summons or other originating process or any third or other party notice) may be served on any party by being delivered to or left for that party at its address for service of notices referred to in clause 9.3 (a).
The Rate Sheet Subscriber may not assign, encumber or declare a trust in relation to all or any of its rights under this Agreement without the prior consent of the Company.
Termination or expiration of this Agreement will not affect any accrued rights or remedies as of the date of termination or expiration. Clauses 5 (Liability and indemnity), 7 (Confidentiality), 8(Term and termination), and 9 (Miscellaneous) will survive the termination or expiration of this Agreement and shall continue in full force and effect, as do any other clause of this Agreement which by their nature survive termination or expiration.
Business Day means a day on which banks in the State of New South Wales (NSW) are generally open for business, or a day other than one on which banks in NSW are obliged or permitted to close, but not including any Saturday or Sunday.
Business Hours means between 8.30am and 5.30pm on Business Days.
Confidential Information means all information (regardless of form) disclosed or otherwise made available by the Company to the Rate Sheet Subscriber for or in connection with this Agreement and all information created by the Rate Sheet Subscriber (derived or produced partly or wholly from the Confidential Information) in connection with this Agreement which:
(a) is marked as being proprietary or confidential to the Company or any of its related bodies corporate;
(b) is confidential to a third party to whom the Company owes an obligation of confidence; or
(c) in the circumstances surrounding disclosure or because of the nature of the information, ought in good faith and reasonably to be treated as confidential,
excluding any information which is in or becomes part of the public domain other than through a breach of this Agreement, which was already known to the Rate Sheet Subscriber at the time of disclosure by the Company or which was developed by the Rate Sheet Subscriber independent of the disclosure by the Company. To avoid doubt, the Data is the Confidential Information of the Company (except to the extent that it is in the public domain).
Controller has the meaning it has in the Corporations Act 2001 (Cth).
Data means the rates provided to the Rate Sheet Subscriber by the Company under this Agreement which is further described in Schedule 1, in whole or in part.
Employees means officers, employees, agents, subcontractors and representatives.
Equipment means any software, hardware, communications or other facilities.
GST means the goods and services tax described in the A New Tax System (Goods and Services Tax) Act 1999 (Cth), and related Acts, or any similar tax.
Intellectual Property Rights means all intellectual property rights including current and future registered and unregistered rights in respect of copyright, designs, circuit layouts, trade marks, trade secrets, know-how, confidential information, patents, invention and discoveries and all other intellectual property as defined in article 2 of the convention establishing the World Intellectual Property Organisation 1967.
Permitted Use means the use described in clause 1.1 (a).
Privacy Laws means the Privacy Act 1988 (Cth), the Spam Act 2003 (Cth), the Telecommunications Act 1997 (Cth) and any other legislation, principles, industry codes and policies relating to the handling of personal information.
Regulatory Authority means any government agency or industry body relevant to financial markets, and includes APRA, ASIC and AFMA.
Standard Pricing Schedule means the schedule that details the fees payable under this Agreement. Available from the Company on request.
Term means the duration of this Agreement in accordance with clause 8.1.
Web Portal means a customer facing facility for Rate Sheet access and administration.
In this Agreement unless the contrary intention appears:
(a) a reference to this Agreement or another instrument includes any variation or replacement of any of them;
(b) 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;
(c) an agreement, representation or warranty in favour of two or more persons is for the benefit of them jointly and severally;
(d) if an event must occur on a stipulated day which is not a Business Day then the stipulated day will be taken to be the next Business Day;
(e) a reference to any thing (including any amount) is a reference to the whole and each part of it and a reference to a group of persons is a reference to any one or more of them; and
(f) the words “including”, “for example” or “such as” when introducing an example, does not limit the meaning of the words to which the example relates to that example or examples of a similar kind.
EXECUTED as an agreement
Schedule 1 - Data definition and Data specification
Rate Sheet Subscribers will receive the following:
An end of day Ratesheet in PDF, Excel and CSV file formats which contain the following:
Yieldbroker produces end-of-day (EOD) indicative rates for a wide range of debt securities. These indicative rates are based on data from Yieldbroker’s licenced financial markets which include:
- Indicative price estimates - all dealers who wish to trade in a security with clients are required, at least, to provide an estimated price for that security;
- Market axes - indications from a dealer as to their buying/selling intention in a security which may include volume and the price at which the bank indicates a willingness to trade; and
- “Live” pricing - executable bids and offers.
Schedule 2 - Fees
The fees payable in advance under this Agreement are set out under the Yieldbroker Standard Pricing Schedule.
Fees may be varied by the Company at any time by giving 30 days written notice to the Rate Sheet Subscriber. The Rate Sheet Subscriber may terminate without penalty if the new fees are not acceptable. If the Rate Sheet Subscriber does not notify the Company during the 30 day period of its exercise of this termination right, the Rate Sheet Subscriber will be deemed to have accepted the fee increase.
The payment arrangements for the fees will be as follows:
- Fees will be payable in Australian Dollars to the Company’s bank account as nominated on each invoice.
- Fees must be paid within 14 calendar days of an invoice being issued. Interest on late payment may be charged at the RBA cash rate +3% calculated and compounded daily.
The fees will not be refunded or reimbursed by the Company under any circumstances, including in the event that this Agreement is terminated early. However, the Company may, at its sole discretion, issue a pro-rata credit to the Rate Sheet Subscriber in the case of a transmission failure, delay or other problem relating to the data. Where such a credit is issued this shall be the sole remedy.
Schedule 3 – Rate Sheet Delivery
The Rate Sheet will be provided by email and can also be accessed via the dedicated Web Portal.