Yieldbroker Terms and Conditions
version 1 dated 1 April 2016
1 Applicable terms and conditions
(a) Your access to and use of the Yieldbroker Pty Limited (ABN 26 092 250 345) (Yieldbroker) Site is governed by:
(i) the terms and conditions set out in Part 1;
(ii) the terms and conditions set out in Part 3; and
together the Site Terms.
(b) Your access to and use of the Services is governed by:
(i) the terms and conditions set out in Part 2;
(ii) the terms and conditions set out in Part 3, and
together the Services Terms.
(c) For the purposes of this document, Terms means:
(i) the Site Terms, if you access and use the Site only;
(ii) the Services Terms, if you access and use the Services only;
(iii) the Site Terms and the Services Terms, if you access and use both the Site and Services.
Part 1: Access to and use of the Site
2 Acknowledgement and acceptance
2.1 Agreement to be bound by the Site Terms
Your access to and use of the Site is conditional upon your acceptance and compliance with the Site Terms. Your access to and use of the Site constitutes your agreement to be bound by the Site Terms.
2.2 Variation of the Site Terms
Yieldbroker reserves the right to amend the Site Terms at any time and you should periodically refer to them on this page and elsewhere on the Site.
3 Intellectual property
3.1 Ownership of content on the Site
(a) The materials displayed on the Site, including without limitation all information, text, materials, graphics, software, tools, results derived from the use of software and tools, advertisements, names, logos and trade marks on the Site (Content) are protected by copyright, trade mark and other intellectual property laws unless expressly indicated otherwise on the Site.
(b) You must not modify, copy, reproduce, republish, frame, download onto a computer, upload to a third party, post, transmit or distribute this Content in any way except as expressly provided for in the Site Terms or with the express prior written consent of Yieldbroker.
3.2 Trade marks, logos and brand names
(a) The registered and unregistered trade marks, logos or brand names displayed on the Site are the property of Yieldbroker, its affiliates, licensors or third parties (as applicable).
(b) Nothing contained on the Site should be construed as granting any license or right to use any such trade mark, logo or brand name without the prior written consent of Yieldbroker or the third-party owner.
3.3 Third party rights
If you become aware of any third party claims that the Site or Content infringes any third party’s Intellectual Property Rights, you agree to use commercially reasonable efforts to notify Yieldbroker of such claims. Without limiting any of Yieldbroker’s other rights or remedies, Yieldbroker may (at its option):
(a) procure the right for you to continue to access or use the Site and Content;
(b) replace or modify the Site or Content so that it becomes non-infringing; or
cease making the Site or Content available to you.
4 Access to and use of the Site
4.1 Access to and use of the Site
You may view the Site using your web browser and save an electronic copy, or print out a copy, of parts of this Site solely for your own personal use, information, research or study, but only if you keep all Content intact and in the same form as presented on the Site (including without limitation all copyright, trade mark and other proprietary notices and all advertisements).
(a) You must not use the Site or the Content in any manner or for any purpose which is unlawful or in any manner which violates any right of Yieldbroker or which is prohibited by the Site Terms.
(b) Under no circumstances may the Content be used to establish, maintain or provide, or assist in establishing, maintaining or providing a market for trading interest rate products.
5 Linking to the Site
5.1 Conditions of linking to the Site
(a) You may link to the home page of the Site provided that the link is a text link only which directs to the home page of www.yieldbroker.com and the link to the Site is identified clearly as such on your website.
(b) Any link to the Site must comply with the Site Terms and the link must not, in Yieldbroker’s opinion deceive or mislead, nor suggest any relationship, endorsement or sponsorship between your site and the Site, nor place the link in any context which may breach any laws, including but not limited to section 18 of the Australian Consumer Law contained in Schedule 2 to the Competition and Consumer Act 2010 (Cth). Yieldbroker is not liable and you agree to indemnify Yieldbroker to the extent that any such conduct is found to have occurred.
(c) The link must be made in good faith, and must not in Yieldbroker’s reasonable opinion cause the Yieldbroker brand or any Yieldbroker trade mark to be viewed in a negative or potentially negative light.
(d) No other linking is permitted unless it is the subject of a separate specific written agreement between you and Yieldbroker.
Yieldbroker can terminate your right to link to the Site by placing a notice on this Site or by informing you directly. If we terminate your right to link to the Site you must cease linking to the Site immediately.
The Content on the Site is derived from sources believed to be accurate and current. However, neither Yieldbroker nor its Representatives:
(a) give any representation or warranty as to the reliability, accuracy or completeness of the Content; or
(b) warrant that any of the functions contained in any Content or that your access to or use of the Site will be uninterrupted or error-free.
6.2 Not investment advice
(a) The Content on the Site provides general information only. It is not intended as investment advice and must not be relied upon as such. You should obtain professional investment advice tailored to your specific circumstances prior to making any investment decisions.
(b) Some Content on the Site provides general information about certain financial products including without limitation interest rate products. The Site does not provide, and must not be construed as providing, recommendations in relation to any financial products. Prior to any action or investment you should seek independent professional advice.
6.3 Advertising and links to other websites
(a) The Site may contain links to third party sites (Linked Sites). Linked Sites are not under the control of Yieldbroker and Yieldbroker is not responsible for the content of any Linked Site or any hyperlink contained in a Linked Site (Subsequent Link). Yieldbroker provides these hyperlinks to you as convenience only, and the inclusion of any link does not imply any endorsement of the Linked Site by Yieldbroker or Yieldbroker’s Representatives.
(b) You acknowledge that access or use of any Linked Site or Subsequent Link is entirely at your own risk.
Part 2: Access to and use of the Services
7 Term and Termination
7.1 Acknowledgement and acceptance of Terms
(a) The Services Terms commence on the date on which Yieldbroker accepts your offer to enter into an agreement with Yieldbroker on the Services Terms. Yieldbroker’s acceptance of your offer may be evidenced by, but not limited to:
(i) providing you with written notice that it has accepted your offer; or
(ii) providing the Services to you.
(b) This agreement will remain in effect unless terminated in accordance with this clause 7.
(c) If Yieldbroker accepts your offer, you acknowledge that an agreement has formed in New South Wales, Australia on the Services Terms.
7.2 General rights to terminate
Either party may terminate the Services Terms:
(a) where no fees are payable to Yieldbroker under the Services Terms, on 28 days’ notice to the other party;
(b) where fees are payable to Yieldbroker under the Services Terms, on 6 months’ notice to the other party;
(c) immediately on notice to the other party, if the other party:
(i) is insolvent or insolvent under administration (each as defined in the Act);
(ii) has a controller (as defined in the Act) 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 party to the Services Terms); or
(iv) is otherwise unable to pay its debts when they fall due; or
(d) on 14 days’ notice to the other party, if Yieldbroker varies the Services Terms, the Standard Pricing Schedule, or if applicable, the Operating Rules in a way that, in your reasonable opinion, materially disadvantages you, and:
(i) you provide Yieldbroker with written notice of your objection to the variation within 21 days of the notice of variation; and
(ii) Yieldbroker does not agree to withdraw or modify to your satisfaction the variation within 14 days of receipt of your objection.
7.3 Your right to terminate
You may terminate the Services Terms immediately on written notice to Yieldbroker if Yieldbroker breaches any of the Services Terms and the breach is material, and:
(a) the breach is not capable of being cured; or
(b) the breach is capable of being cured and Yieldbroker fails to cure the breach within 30 Business Days (or such other number of days agreed in writing by you and Yieldbroker) of being notified in writing of the breach by you.
7.4 Yieldbroker’s rights to terminate
(a) Yieldbroker may terminate the Services Terms immediately on notice (in accordance with clause 16.4) if:
(i) you fail to pay to Yieldbroker any fee, charge or fine under the Services Terms or, if applicable, the Operating Rules, within 28 days of it becoming due;
(ii) you breach any of the Services Terms or, if applicable, the Operating Rules and either the breach is not capable of being cured or the breach is capable of being cured and you fail to cure the breach within 30 Business Days (or such other number of days agreed in writing by Yieldbroker and you) of being notified in writing of the breach by Yieldbroker.
(iii) you dispose of or lose possession of any software or hardware needed to access the System;
(iv) ASIC issues a direction binding on Yieldbroker to terminate the Services Terms, or to revoke your right to access or use the System or the Market;
(v) a person which has Control of you as at the date of the Services Terms ceases to have Control after the date of the Services Terms, or a person which does not have Control of you as at the date of the Services Terms gains Control of you after the date of the Services Terms;
(vi) if you have made any material misrepresentations to Yieldbroker at any time, whether before or after the commencement of the Services Terms; or
(vii) Yieldbroker is required to be registered under the laws of a jurisdiction outside of Australia or to obtain or maintain a licence, consent or other authorisation from a government agency or regulatory authority outside of Australia in order for Yieldbroker to provide to you, or for you to use, any of the Services.
(b) In addition, if you are a Participant, Yieldbroker may terminate the Services Terms immediately on notice if:
(i) an ISV appointed by you engages in conduct which, if it had been engaged in by you, would be in, breach of any of the Services Terms;
(ii) you cease to satisfy the eligibility criteria in the Operating Rules for participation in the Market;
(iii) your Licence has been revoked or you have breached a condition of your Licence in a way that materially affects your ability to participate in the Market; or
(iv) Yieldbroker terminates your rights to access and use the Market in accordance with the Operating Rules.
(a) Termination of the Services Terms will not affect any rights or remedies accrued prior to the date of termination, including obligations to pay amounts owed or owing to the other party under the Services Terms.
(b) If you are a Participant, you will be liable to complete all transactions with other Participants which are not completed at the time of termination of the Services Terms.
(c) Clauses 7 (Term and Termination), 14 (Intellectual Property), 15 (Confidentiality), 16 (Miscellaneous), 17 (Liability and Indemnity) and 18 (General) will survive the termination or expiration of the Services Terms, as will any other clause of the Services Terms which by its nature survives termination.
8 Variation of Terms
(a) You acknowledge and agree that:
(i) Yieldbroker may vary the Services Terms or Operating Rules from time to time in its sole discretion;
(ii) any notifications of variations will be sent to the email address nominated by you under clause 16.4(b); and
(iii) any variation to the Services Terms will take effect on the date specified in the notice, which must be a date after the date the notice is sent to you and provide you with a minimum of 21 days in the circumstances to raise an objection to the variation.
(b) By continuing to use any Service, you will be deemed to have consented to the variations to the Services Terms, unless Yieldbroker has received your objection to the variation in accordance with clause 7.2(d)(i) in which case the deemed consent will not apply.
(c) If you have raised an objection under 7.2(d)(i) but continue to use any Service beyond the period specified in clause 7.2(d)(ii), you will be deemed to have consented to the variations to the Services Terms.
9 Operation of the System and the Market
You agree that:
(a) Yieldbroker will manage and control the System and the Market;
(b) Yieldbroker may in its sole discretion connect any new External System to the System or add any new Participant to the System and the Market; and
(c) Yieldbroker may in its absolute discretion grant you either full or partial rights to access and use the System or the Market.
10 The System
10.1 Access to and use of the System
(a) Subject to clause 10.1(b), you may access, interface with and use the System in accordance with the Services Terms and any conventions, user manuals, guides or instructions provided by Yieldbroker from time to time.
(b) If you are an ISV, you may only access, interface with and use the System to the extent required to develop, support and maintain an External System.
(c) You acknowledge and agree that:
(i) you are responsible for any costs associated with accessing the System, including any network connectivity costs;
(ii) Yieldbroker may, in its absolute discretion, immediately suspend, alter or revoke your right to access, interface with or use the System for any reason;
(iii) Yieldbroker may make changes to the System at any time. Yieldbroker will use commercially reasonable efforts to provide notice of any material changes (as determined in Yieldbroker’s sole discretion);
(iv) Yieldbroker’s Representatives may monitor all access to and use of the System; and
(v) Yieldbroker may automatically check the version of the software and / or its components that you are using and may provide upgrades or fixes to the software that will be automatically downloaded to your computer.
Unless otherwise agreed by Yieldbroker, you must not:
(a) modify the System in any manner;
(b) disassemble, decompile or reverse engineer any part of the System;
(c) access, interface with or use the System:
(i) in a manner which may harm or adversely affect access to it by another person;
(ii) in a manner which may adversely affect the performance or operation of the System or Market;
(iii) outside the times or days which Yieldbroker may specify from time to time; or
(iv) for any purpose not expressly permitted by the Services Terms or, if applicable, the Operating Rules;
(d) distribute, rent, lease, lend or otherwise disclose any part of the System to a third party;
(e) attempt to access any restricted part of the System without due authority from Yieldbroker; or
(f) attempt to, or cause any person to, do any of the above acts.
11 Access to and use of the Market
(a) This clause 11 applies to you if Yieldbroker has agreed that you may access, use or connect to the Market.
(b) You may only access, use or connect to the Market in accordance with the Services Terms and, if applicable, the Operating Rules.
(c) If you are a Participant:
(i) you agree to comply with the Operating Rules. To the extent of any inconsistency between the Services Terms and the Operating Rules, the Operating Rules prevail. The Operating Rules have effect as a contract under seal between Yieldbroker and each Participant in the Market and between a Participant and each other Participant in the Market; and
(ii) you represent and warrant that you have and will continue to have all necessary statutory licences and authorisations required to participate in the Market.
(d) You acknowledge and agree that:
(i) if Yieldbroker ceases to operate any Market in which you participate, access, use or connect to, the Services Terms will continue to apply in relation to any other Market which Yieldbroker continues to operate and in which you participate, access, use or connect to;
(ii) Yieldbroker may, in its absolute discretion, immediately suspend, alter or revoke your right to access, use and connect to the Market for any reason without notice and that if Yieldbroker suspends, alters or revokes your right to access, use or connect to the Market, any information submitted by you to the Market after this decision may be rejected until further notice in Yieldbroker’s sole discretion; and
(iii) Yieldbroker reserves the right to make changes to the Market. Yieldbroker will use commercially reasonable efforts to provide notice of any material changes (as determined in Yieldbroker’s sole discretion).
12 External Systems
(a) You must not connect any External System to the System without prior approval from Yieldbroker.
(b) If you develop or use any External System to connect to Yieldbroker’s System or Market, you must:
(i) upon request, promptly provide Yieldbroker with access to a test connection of any External System which you connect or propose to connect to the System. For the avoidance of doubt, Yieldbroker will not require access to your source code.
(ii) ensure that the External System is only used to connect to the Market by Participants approved by Yieldbroker;
(iii) ensure that the External System complies with the relevant interface specifications provided by Yieldbroker from time to time;
(iv) before connecting the External System to the System, ensure that the External System has been thoroughly tested and will not adversely affect the performance or operation of the System or the Market. Yieldbroker agrees that if the External System is tested with Yieldbroker’s test systems, no further testing will be required by you under this paragraph;
(v) engage with Yieldbroker in a timely manner to address any defects or issues in the interface between the External System and the System;
(vi) promptly notify Yieldbroker of any material changes to the External System connected to, or intended to connect to, the System;
(vii) promptly report to Yieldbroker any security vulnerability, incompatibility issues, software bugs and other issues that you discover in, or with potential impact on, the External System, or any Service;
(viii) perform any root cause analysis requested by Yieldbroker from time to time;
(ix) ensure that any changes to the External System are thoroughly tested before being implemented. Yieldbroker agrees that if the changes to the External System are tested with Yieldbroker’s test systems, no further testing will be required by you under this paragraph;
(x) ensure that up to date, industry standard products, protocols and procedures are followed in relation to information security to protect the authentication of, access to, interface with and use of the System;
(xi) promptly update the External System to maintain compatibility and security upon receiving any information from Yieldbroker regarding updates to any Service;
(xii) independently acquire any appropriate third-party licences necessary to access the System and to develop and provide the External System; and
(xiii) continue to support any interfaces between the External Systems and the System so long as the External System remains available to Participants.
(c) You and Yieldbroker each acknowledge and agree that:
(i) notwithstanding any testing that may be undertaken or approval or confirmation that may be granted by Yieldbroker, you remain fully responsible for any External System that you have either developed or connected to the System;
(ii) you remain fully responsible for the External System and its compatibility with the System and that despite approval by Yieldbroker in clause 12(a), Yieldbroker takes no responsibility for the External System and its compatibility with the System; and
(iii) Yieldbroker will promptly notify you of any major change to the System before the change is implemented, or if this is not practicable, as soon as possible after the change is implemented, where such change may, in Yieldbroker’s reasonable opinion, potentially impact compatibility of the External System with the System. Yieldbroker acknowledges that you will be relying on such notification in order to maintain compatibility under paragraph (c )(ii) above.
(d) You represent and warrant that any External System you have developed to connect to the System and / or Market does not and will not infringe any patents, copyrights, database rights or trade secrets or any other proprietary or Intellectual Property Rights of any third party.
13 Data and Market Data
13.1 Use of Data and Market Data
(a) You agree that:
(i) the Services Terms will apply regardless of whether Yieldbroker or a third party is the originating source of the Data or Market Data;
(ii) you must provide Yieldbroker with details of each person who will access and use the Data or Market Data on your behalf, and each physical building at which the Data or Market Data will be accessed and used (whether by a natural person or an External System) and Yieldbroker may in its sole discretion refuse to allow access and use by such person or at such physical building;
(iii) you must not modify, aggregate, reproduce, sell or distribute the Data or Market Data without Yieldbroker’s prior consent;
(iv) you must not use or store any Data or Market Data for any purpose except as permitted by the Services Terms or by Yieldbroker from time to time;
(v) Yieldbroker retains all rights to the Data and Market Data;
(vi) you acknowledge that Yieldbroker may store Data and Market Data with third parties who have been contracted to provide customer relationship systems and technological solutions to Yieldbroker as part of its internal management and control systems; and
(vii) you will not disclose the Data or Market Data to any Retail Client or otherwise permit it to be accessed or used by a Retail Client.
13.2 Quality of the Data and Market Data
You acknowledge and agree that, to the extent permitted by law:
(a) Yieldbroker makes no warranty as to the accuracy, completeness or suitability of the Data or Market Data and accepts no liability or responsibility for errors, omissions or misstatements, negligent or otherwise;
(b) Yieldbroker does not provide any legal, tax, accounting, securities or investment advice whatsoever. Any information provided by Yieldbroker as part of providing the Services is general information only and must not be relied on as legal, tax, accounting, securities or investment advice;
(c) Yieldbroker is under no obligation to verify, update or correct any Data or Market Data;
(d) the Data or Market Data may be based on assumptions or market conditions and may change without notice;
(e) any prices included in the Data may be indicative averages only;
(f) you are solely responsible for forming your own independent judgements, interpretations, conclusions, and deductions about any Data or Market Data;
(g) no part of the Data or Market Data is to be construed as an offer to buy or sell securities or as a solicitation or recommendation to make a financial investment or divestment;
(h) in preparing the Data or Market Data, Yieldbroker did not take into account the investment objectives, financial situation or needs of any particular investor;
(i) you should seek your own independent financial advice before relying on the Data; and
(j) Yieldbroker accepts no responsibility for any losses suffered in reliance on the Data or Market Data.
13.3 Market Data distribution
You must not distribute, forward, share or adapt any Market Data unless you have entered into a data distribution agreement with Yieldbroker. You agree that any use of that Market Data is strictly in accordance with the terms and conditions of that data distribution agreement.
14 Intellectual Property
14.1 Use of your trade mark, logo or brand name:
(a) Yieldbroker may use your trade mark, logo or brand name in advertising or promotional materials provided you have granted Yieldbroker a non-exclusive licence for the term of the Service Terms and have approved in writing the manner and form of their use.
(b) Yieldbroker may not assign or transfer any licence granted under clause 14.1(a).
(c) Yieldbroker acknowledges that the Services Terms are the sole source of Yieldbroker’s right to use your trade mark and any powers conferred by section 26 of the Trade Marks Act 1995 (Cth) are expressly excluded.
(d) You agree that Yieldbroker may, at its sole discretion, publicly announce the connection or addition of any new or existing External System or Participant to its System or Market.
(e) You may revoke the licence granted to Yieldbroker referred to in clause 14.1(a) at any time by notice in writing and Yieldbroker must, as soon as reasonably practicable, cease use of your trade mark, logo or brand name upon receipt of such notice.
14.2 Ownership of the System, Market, Data and Market Data
(a) You acknowledge and agree that:
(i) Yieldbroker owns all right, title and interest in and to the System, Market, Data and Market Data including all Intellectual Property Rights in them.
(ii) Yieldbroker will own any modifications to the System, Market, Data or Market Data (“Modifications”), notwithstanding that you may have paid for such Modifications.
(b) If you or your Representatives create any Modifications, you assign (and must procure that your Representatives assign) to Yieldbroker all Intellectual Property Rights in the Modifications. You must do all things necessary to effect the assignment contemplated by this clause 14.2(b).
(c) Nothing in the Services Terms affects the ownership of any External System.
14.3 Third party rights
If you become aware of any third party claims that:
(a) the System, the Market, the Data, the Market Data or the Services; or
(b) any External System you develop or use,
infringes any third party’s Intellectual Property Rights, you agree to use commercially reasonable efforts to notify Yieldbroker of such claims. Without limiting any of Yieldbroker’s other rights or remedies, Yieldbroker may (at its option):
(c) procure the right for you to continue to use the Services;
(d) replace or modify the relevant System, Market, Data, Market Data or Service so that it becomes non-infringing; or
(e) terminate the Services Terms by notice to you and (if applicable) refund to you any fees which, at the time of the notice, had been paid in advance.
You must not remove, obscure, or alter any copyright notice, trade marks, or other proprietary rights notices affixed to or contained within or accessed in conjunction with or through the System, the Market, the Data or the Market Data.
If you are a Participant, you must also comply with your confidentiality obligations under the Operating Rules.
15.2 Use and disclosure of Confidential Information
You must not:
(a) use any Confidential Information except for the purpose of exercising your rights or performing your obligations under the Services Terms or, if applicable, the Operating Rules; or
(b) disclose any Confidential Information to any other person except:
(i) with the written consent of Yieldbroker;
(ii) on a confidential basis, to your Representatives to the extent required for the purposes of the Services Terms or to enable you to obtain professional advice in relation to the Services Terms;
(iii) if you are required to do so by law or by a lawful requirement of any government or governmental body, authority or agency having authority over you or by a stock exchange (except that this clause 15.2(b)(iii) does not permit you to disclose any information under section 275(4) of the PPSA unless section 275(7) of the PPSA applies);
(iv) if you are required to do so in connection with legal proceedings relating to the Services Terms or other agreement between us; or
(v) if applicable, to the extent permitted by the Operating Rules.
15.3 Return of Confidential Information
On Yieldbroker’s request, you must use commercially reasonable efforts to, at Yieldbroker’s option, deliver to Yieldbroker or destroy all documents or other materials containing or referring to the Confidential Information which are in your possession, power or control, or in the possession, power or control of persons who have received Confidential Information from you, except to the extent that:
(a) you require the Confidential Information for the purpose of performing your obligations or exercising your rights under the Services Terms;
(b) you are required to retain a copy of the Confidential Information by law, regulation or pursuant to a subpoena, or order of a court or regulator or legislative body of competent jurisdiction;
(c) you retain a copy of the Confidential Information as part of your automatic back-up, archiving or record-keeping procedures; or
(d) you are otherwise entitled to retain the Confidential Information.
15.4 Injunctive Relief
You recognise that Yieldbroker would incur irreparable harm from a breach of this clause 15 and that monetary damages would be inadequate to compensate for such breach. You agree, therefore, that if you commit such a breach, Yieldbroker will be entitled to seek an injunction or other equitable relief and that you will not object to such injunction or equitable relief on the basis that there is an adequate remedy at law or that injunctive remedies should not otherwise be available to remedy a breach. This remedy will be in addition to any other remedies available to Yieldbroker. Nothing in this clause 15 will limit the right of Yieldbroker to contest any facts or make any legal argument relating to the existence of any breach or threatened breach of this clause 15.
You acknowledge that Yieldbroker does not operate a registered exchange, securities market, futures market or any other business in any jurisdiction outside Australia.
(a) You must pay any fees levied by Yieldbroker:
(i) in accordance with Yieldbroker’s Standard Pricing Schedule within 14 days of receiving an invoice, unless timing is otherwise agreed separately between Yieldbroker and you ; and
(ii) in Australian Dollars (or otherwise as set out in the Standard Pricing Schedule) in full to the bank account nominated by Yieldbroker on the invoice.
(b) You are responsible for any bank deductions in relation to international payments.
(c) If Yieldbroker is liable for GST on any supply made under the Services Terms, on receipt of a tax invoice from Yieldbroker, you must pay to Yieldbroker, an amount equal to that GST, in addition to and at the same time any other amount is payable.
(d) If you dispute an invoice in whole or in part, you must provide Yieldbroker with written notice of the reasons for your dispute within 21 days of receiving that invoice.
(e) Yieldbroker may vary its Standard Pricing Schedule (including to introduce new fees or vary existing fees) at any time by providing at least 30 days’ notice prior to the variation taking effect. Any such notice of variation will be notified to the email address nominated by you under clause 16.4(b) of the Services Terms.
(f) For the avoidance of doubt, if you terminate the Services Terms in accordance with clause 7.2(d) or clause 7.3, you will not be liable to pay the variation portion to the Standard Pricing Schedule in respect of the Services Yieldbroker has provided to you prior to the variation taking effect.
16.3 Appointment of ISVs
(a) If you are a Participant, you agree that you are responsible for all acts and omissions of any ISV you appoint to develop an External System or access, use or connect to the Market as if they were your actions.
(b) If you are an ISV appointed by a Participant to develop an External System or access, use or connect to the Market, you agree that as between you and Yieldbroker, you are liable for all your acts and omissions notwithstanding the terms of your appointment between you and the relevant Participant.
(a) A notice, approval, consent or other communication in connection with the Services Terms (including a variation to the fees or the Services Terms):
(i) may be given by an authorised officer of the relevant party;
(ii) must be in writing in the English language;
(iii) must be marked for the attention of the “Legal Department” of the relevant party; and
(iv) must be sent by email to the email address notified from time to time in accordance with clause 16.4(b).
(b) Notices sent by email to you under this clause will be sent to the email address nominated by you when you first applied to enter into an agreement with Yieldbroker on the Services Terms or any replacement email address notified to Yieldbroker by you thereafter. You agree to ensure that these contact details remain up-to-date.
(c) Notices sent by email to Yieldbroker under this clause should be sent to the following email address: email@example.com. Yieldbroker may vary these details from time to time by providing you notice of any such variations.
(d) Communications sent by email:
(i) must state the first and last name of the sender; and
(ii) are taken to be signed by the named sender.
(e) Unless a later time is specified in it, a notice, approval, consent or other communication takes effect from the time it is or taken to be received under the Services Terms.
(f) Subject to clause 16.4(g), if a notice, approval, consent or other communication is received after 5.30pm 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 on the next working day in that place.
(g) 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.
Part 3: General Terms
17 Liability and indemnity
17.1 Limitation of liability
(a) To the extent permitted by law and subject to clauses 17.1(d) and 17.2,
(i) if you use and access the Services, Yieldbroker limits its liability to you in contract, tort (including negligence), under any statute or otherwise for any loss or damage arising from or in any way connected with your access or use of the Services to:
(A) $100,000 for all causes of action which first accrue in the First Calendar Year; and
(B) for all causes of action which first accrue in each subsequent Calendar Year, the fees which have been paid or are payable to Yieldbroker in the previous Calendar Year.
(ii) if you use and access the Services, Yieldbroker excludes its liability to you in contract, tort (including negligence), under any statute or otherwise for any Consequential Loss arising from or in any way connected with your access or use of the Services; and
(iii) in all other circumstances, Yieldbroker excludes all liability to you in contract, tort (including negligence), under any statute or otherwise for any loss or damage (including Consequential Loss) arising from or in any way connected with the Terms including, without limitation:
(A) your access or use of the Site, the Content or any omissions from the Content, any External System or third-party product or service:
(B) any failure of or malfunction in any telecommunications system connected to a Service;
(C) any inoperability or malfunction of any External System;
(D) the transmission, receipt or relay of any information;
(E) any breach of security or confidentiality; or
(F) any delays, interruptions, errors or omissions in collecting, recording, processing, storing or disseminating information.
(b) In addition, the liability of Yieldbroker for loss or damage of any kind (including loss or damage caused by negligence or breach of contract) is reduced to the extent that you caused or contributed to that loss or damage by act or omission.
(c) You agree that Yieldbroker will not be liable for the failure of any communication network or External System.
(d) The parties acknowledge and agree that nothing in these Terms will exclude or limit Yieldbroker’s liability to you for dishonesty, wilful misconduct or fraud.
17.2 Consumer Rights
Notwithstanding clause 17.1, the parties acknowledge and agree that:
(a) if anything arising out of or connected with these Terms constitutes a supply of services to you as a consumer, then you 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 in New Zealand, in respect of which liability may not be excluded or restricted;
(b) nothing in these Terms will exclude or restrict any non-excludable rights or remedies referred to in clause 17.2(a) above;
(c) if any such liability may not be excluded, then to the maximum extent permitted by law, such liability is limited, at Yieldbroker’s exclusive option, to:
(i) resupply of the services; or
(ii) payment of the cost of having the services supplied again.
(a) You agree to indemnify, as a continuing indemnity, Yieldbroker and its Representatives from and against any loss, damage or liability (including legal costs and other expenses) incurred or suffered by Yieldbroker or its Representatives arising from or in connection with:
(i) any breach by you of these Terms;
(ii) reliance upon or use of any Content by any person accessing any Content through your website.
(iii) any information you or your Representatives provide to the System or Market;
(iv) any External System you use or develop to connect to the System, including the functioning or malfunctioning of, or any adverse impact on the performance or operation of the System or the Market caused by, that External System; and
(v) any unlawful, dishonest, fraudulent or negligent act or omission or wilful misconduct of you or your Representatives.
(b) Yieldbroker agrees that your liability for any loss or damage under this clause 17.3:
(i) excludes any Consequential Loss; and
(ii) is reduced to the extent that Yieldbroker caused or contributed to the loss or damage, or Yieldbroker did not use reasonable endeavours to mitigate its loss.
You release and forever discharge Yieldbroker and its Representatives from all liability arising out of or in connection with Yieldbroker ceasing to provide or modifying:
(a) your access to the Site; or
(b) the Services,
which Yieldbroker in good faith considers necessary to comply with the Act, the AFMA Conventions or any law or at the direction or request of any regulatory body in relation to the Site or any Service.
You represent and warrant that:
(a) you have full power and authority to enter into and perform your obligations under these Terms;
(b) you have taken all necessary steps to authorise the performance of these Terms; and
(c) these Terms constitute a legal, valid and binding obligation on the parties which is enforceable in accordance with its terms.
Either party must not novate, assign, encumber or declare a trust in relation to all or any of their rights under these Terms without the other party’s prior consent.
18.3 Governing Law
(a) These Terms are governed by the law in force in New South Wales, Australia.
(b) Unless clause 18.4 applies to you, you irrevocably and unconditionally submit to the non-exclusive jurisdiction of the courts of New South Wales Australia and courts of appeal from them. Each party waives any right it has to object to an action being brought in those courts.
18.4 International Arbitration
(a) This clause 18.4 applies to you if you are incorporated outside of Australia and do not carry on business in Australia.
(b) The parties agree that any dispute or difference whatsoever under, in respect of, or in connection with these Terms will be settled by arbitration in accordance with the ACICA Arbitration Rules:
(i) the arbitration will take place in Sydney, Australia and will be administered by the Australian Centre for International Commercial Arbitration (ACICA);
(ii) the language of arbitration will be English; and
(iii) the number of arbitrators will be one. The parties will seek to agree the arbitrator. If the parties cannot agree the arbitrator within 30 days of the submission of the notice of arbitration, ACICA will appoint the arbitrator.
If the whole or any part of a provision of these Terms is void, unenforceable or illegal in a jurisdiction it is severed for that jurisdiction. The remainder of these Terms has full force and effect and the validity or enforceability of that provision in any other jurisdiction is not affected. This clause has no effect if the severance alters the basic nature of these Terms or is contrary to public policy.
18.6 Terms replaces earlier deeds and agreements
These Terms replaces any other terms and conditions or any deed or agreement (if any) of a similar nature entered into between the parties before the date of these Terms and the parties acknowledge and agree that such other terms and conditions, deed or agreement (if any) is terminated with effect from the date of these Terms. Any accrued rights, powers or remedies will remain.
19 Definitions and Interpretation
The following words have these meanings in these Terms unless the contrary intention appears.
Act means the Corporations Act 2001 (Cth).
AFMA Conventions mean the market conventions issued by the Australian Financial Markets Association from time to time.
Applicant means the person submitting the application form to Yieldbroker for using the Service.
Business Day has the same meaning as in the AFMA Conventions, which as at the date of drafting these Terms means a day on which banks in the state of New South Wales are generally open for business.
Calendar Year means a period of 12 months commencing on 1 January in each year and ending on 31 December in the same year.
Confidential Information means all information (regardless of form):
(a) in relation to any Service;
(b) disclosed or otherwise made available by Yieldbroker which:
(i) is marked as being proprietary or confidential to Yieldbroker or any of its related bodies corporate;
(ii) is confidential to a third party to whom Yieldbroker owes an obligation of confidence; or
(iii) in the circumstances surrounding disclosure or because of the nature of the information, ought in good faith and reasonably to be treated as confidential; and
(c) created, derived or produced partly or wholly from the information specified in paragraphs (a) and (b) above,
excluding any information which is in or becomes part of the public domain other than through a breach of these Terms or an obligation of confidence owed to Yieldbroker. For the avoidance of doubt, the Standard Pricing Schedule is considered the Confidential Information of Yieldbroker.
Consequential Loss means:
(a) loss of profits, revenue, anticipated savings, opportunity, goodwill, reputation and loss of data; and
(b) any loss or damage which although in the contemplation of the parties is not a loss or damage which may fairly and reasonably be considered to arise naturally (that is, in the usual course of things) from the breach or other act or omission.
Content has the meaning given in clause 3.1(a).
Control of a corporation means having:
(a) more than 19.9% of the votes eligible to be cast in the election of directors or any similar matter;
(b) the right to appoint or remove directors (or members of a governing body having functions similar to a board of directors) or any similar matter representing more than 19.9% of the votes exercisable by all the directors (or persons having similar functions); or
(c) an interest of more than 49.9% in any category of the profits, distributions or net liquidation proceeds of that corporation.
Data means any information obtained from the System or the Market or otherwise provided by Yieldbroker in relation to the System or the Market, other than Market Data.
Dealer & Client market means the electronic order entry, databases and dealing interfaces permitting dealing between Participants who have agreed to these Terms. Formerly known as the Dealer-to-Client market.
External System means any system not provided by Yieldbroker which is intended to or does access or interface with the System or Market.
First Calendar Year means the period between the date when the Service Terms commenced under clause 7.1(a) and 31 December of the Calendar Year in which the Service Terms commenced.
GST means the goods and services tax described in the A New Tax System (Goods and Services Tax) Act 1999, 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.
Independent Software Vendor or ISV means a person that makes available to Participants a system or platform offering smart order routing, front-end trading applications, an aggregator platform or a combination of the foregoing.
Interdealer market means the electronic order entry, databases and dealing interfaces permitting dealing between Participants who have agreed to these Terms.
Licence means any licence, approval, permit and consent you require to participate in the Market.
Linked Sites has the meaning given in clause 6.3(a).
Market means a collective name for the electronic order entry, databases and trading interfaces operated by Yieldbroker consisting of the Dealer & Client market and/or the Interdealer market (as relevant).
Market Data means any information obtained from the Market that is:
(a) indicative price data and other related data, including approximate valuations, inventory information and indications of interest;
(b) information in relation to invitation to treat, offer to deal, acceptances and dealings concluded on or through the Market, including quote requests, firm quotes, trade requests and live prices in connection with a Participant; and
(c) any derivatives of (a) or (b).
Modifications has the meaning given in clause 14.2(a)(ii).
Operating Rules means Yieldbroker’s Operating Rules for the Relevant Market, made in accordance with the Act. Operating Rules apply only to Participants in Yieldbroker’s Relevant Markets.
Participant means a person who is allowed to directly participate in the Market in accordance with the Operating Rules. For clarity, Yieldbroker is not a Participant.
PPSA meansthe Personal Property Securities Act 2009 (Cth).
Receiver includes a receiver and a receiver and manager.
Relevant Market meansin relation to a particular person, the particular market or markets operated by Yieldbroker to which the person seeks admission as, or has been admitted as, a Participant, being the Dealer & Client market and/or the Interdealer market, and otherwise means the Dealer & Client market and/or the Interdealer market (as applicable).
Representatives mean officers, personnel, employees, agents, subcontractors and representatives.
Retail Client has the meaning given to it in the Act.
Services means any service offered or operated by Yieldbroker including, but not limited to, the granting of access to and the ability to interface with or use the System, the Market, the Data, the Market Data and any other service operated on the Site. For the avoidance of doubt the provision of publicly accessible Content on the Site is not a Service.
Services Terms has the meaning given in clause 1(b).
Site means any publicly accessible webpage operated under the yieldbroker.com domain.
Site Terms has the meaning given in clause 1(a).
Standard Pricing Schedule means Yieldbroker’s standard pricing schedule, as provided to you on or before the date you made an offer under clause 7.1(a), as amended by Yieldbroker from time to time in accordance with clause 16.2(e).
Subsequent Link has the meaning given in clause 6.3(a).
System means the overall service provided by Yieldbroker that incorporates any electronic order entry or dealing interface, software, server, database, network or other computerised service provided by Yieldbroker including any associated documentation used for production, testing, development or any other purpose.
Terms has the meaning given in clause 1(c).
You meansthe legal entity nominated in the application form submitted by the Applicant to Yieldbroker for using the Services and Site (as applicable).
In these Terms unless the contrary intention appears:
(a) a reference to these Terms 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 anything (including, but not limited to, 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;
(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; and
(g) headings are inserted for convenience and do not affect the interpretation of these Terms.