1 Acknowledgment & Acceptance of Agreement
1.1 Access to and use of the Easterly Asset Management Portfolio System service (“Service”) is provided to you subject to these terms and conditions.
1.2 Our Privacy Statement is available at https://easterlyassetmanagement.com.au/privacy-disclaimer/#privacy. The Privacy Statement forms part of the terms relating to the Service (“collectively the “Agreement”). You understand that by agreeing to these terms and conditions, which include our Privacy Statement, you consent and agree to the collection and use of certain information (including personal information) about you and your use of the Service in accordance with our Privacy Statement. Our Privacy Statement sets out how we handle and protect your information.
1.3 We reserve the right to modify and amend the terms and conditions at any time. Once any modified or amended terms and conditions are notified to you via the Service or upon accessing the Service, you will be bound by them. We urge you to regularly check all the terms and conditions displayed on this website to ensure you are aware of any such changes. Your continued use of the Service following the notification of changes will indicate your acceptance and agreement of the changes.
1.4 As part of the registration process you will be assigned a unique username and password. You must not share your username and password with any other person, and you must ensure that it remains secure.
1.5 The relationship of the Parties is that of independent contractor. Nothing in this Agreement creates or will be deemed to create a partnership, joint venture, employee or employer relationship, or any other relationship between the Parties.
1.6 References in the Agreement to:
APRA means Australian Prudential Regulation Authority (APRA), the prudential regulator of the Australian financial services industry established by the Australian Prudential Regulation Authority Act 1998 (Cth);
Austraclear means the Australian licensed clearing and settlement facility providing depository, registration, cash transfer and settlement services for debt instrument securities in financial markets in Australia and the Asia-Pacific region;
Applicable Law means all laws, procedures, standards and codes of practice that apply in relation to the subject matter of this Agreement, including the Corporations Act 2001 (Cth), the Australian Securities and Investments Commission Act 2001 (Cth), ASIC policies, the Privacy Act 1998 (Cth), Austraclear and ASX Regulations relating to the Services and including all relevant rules of government agencies;
Australian Consumer Law means the Australian Consumer Law pursuant to the Competition and Consumer Act 2010 (Cth);
Client is a reference to individuals, businesses or companies who have use the Service;
Confidential Information means all information (whether or not it is designated or marked as confidential) in any form or medium concerning any past, present or future business, operations or affairs of the Client and us including, without limitation all information contained in this Agreement, but excluding information that has come into the public domain other than by a breach of this Agreement;
GST Law means the same as in the A New Tax System (Goods and Services Tax) Act 1999 (Cth);
GST Rate means the rate of GST under the GST Law;
Material refers to content supplied by us or third parties, published or made available on the Site or via the Service, including advertisements, product and service offers, software and links and other content supplied by us and third parties;
Participant of Austraclear means a provider of Austraclear settlement Services;
Parties means the Client and Laminar Capital Pty Ltd;
Start Date means the date an agreement for the Services was executed by the Client, or the terms and conditions of this Agreement were accepted;
Services Fee means the fees specified in this Agreement payable to Laminar for the Services during the Term of this Agreement;
Tax Invoice has the meaning given to that expression in the A New Tax System (Goods and Services Tax) Act 1999 (Cth);
Site refers to portfolio.easterlyassetmanagement.com.au;
“You”, “yours” and “yourself” are references to you as an individual and you as an officer, director or representative of any business or company you act for as our Client; and
“we”, “us” and “our” are references to Laminar Capital Pty Ltd ACN 134 784 740, ABN 33 134 784 740.
2 Service Fees, Payment & GST
2.1 The monthly fee will be payable in advance and billed at the beginning of the calendar month and is due and payable 14 days after the invoice is issued. Where the fee for Services is in arrears for over 28 days we may suspend access and use of the Service.
2.2 We may charge interest where payments are not made by the Client in accordance with the payment terms outlined in this Agreement, Where we charge interest, interest will be charged from the date on which the payment was due at the prevailing Penalty Interest rate as shown on the Law Institute of Victoria’s website (www.liv.asn.au) until the date the payment is made.
2.3 If any supply made by a party (“Supplier”) to the other (“Recipient”) under this Agreement is a taxable supply (according to GST Law) so that the Supplier is liable to GST, the parties agree that the consideration payable for that taxable supply represents the value of the taxable supply (the “GST Exclusive Amount’) and not the price for that taxable supply.
2.4 In addition to the GST Exclusive Amount for a taxable supply under this Agreement, the Recipient must pay to the Supplier a further amount in respect of the taxable supply calculated as an amount equal to the GST Exclusive Amount multiplied by the GST Rate.
2.5 Any GST payable under paragraph 2.6 must be payable by the Recipient without deduction or set-off of any other amount, at the same time and on the same basis as the GST Exclusive Amount is payable by the Recipient under this Agreement.
2.6 The Supplier must, in respect of a taxable supply made by it under this Agreement, issue to the Recipient a valid tax invoice in the prescribed form, for the amount of GST referable to that taxable supply, so that the Recipient may obtain an input tax credit for the amount of GST payable on the taxable supply.
3 Term & Termination
3.1 This Agreement will commence on the State Date and will continue until terminated.
3.2 The parties may terminate this Agreement as follows:
(a) Either party may immediately terminate this Agreement by written notice if the other party (i) commits a breach of this Agreement which is not remedied within two weeks of a written notice of breach, or (ii) commits a breach which is not capable of remedy or (iii) is subject to any form of insolvency, receivership or external administration;
(b) The Client may immediately terminate this Agreement by written notice if we cease to hold an Australian Financial Services Licence or any other authorisations required to provide the Services including but not limited to our Austraclear Participant status;
(c) Subject to paragraphs (a) and (b), at any time after one year from the Start Date, either party may terminate this Agreement without cause by giving the other party one months’ written notice; or
(d) The Client may immediately terminate this Agreement by written notice if Laminar ceases to hold an Australian Financial Services Licence or any other authorisations required to provide the Services including but not limited to its Austraclear Participant status.
4 Review, APRA & Austraclear
4.1 The Client may, on each anniversary from the Start Date, or on other occasions where supported by a reasonable request, conduct a review or monitoring process of the Services. We will make reasonable commercial endeavours to assist the Clients review process.
4.2 We acknowledge that the Client may require APRA to conduct on-site visits in its role as prudential supervisor on Client’s outsourced providers. We will endeavour to accommodate all reasonable requests in a timely manner where APRA consider such visits necessary.
4.3 As a Participant of Austraclear, we are required to observe and comply with the Business Continuity requirements set out in Austraclear regulations of Austraclear Limited s 2.4(b)(iii). This requires us to establish we have appropriate complementary business continuity arrangements enabling it to meets its obligations in an ongoing and timely manner to maintain its Participant status. The compliance with this requirement is reviewed annually by Austraclear.
5 Security, Technology & Data
5.1 You must take your own precautions to ensure that the processes you employ for accessing this Service does not expose you to the risk of viruses, malicious computer codes or any other form of interference which may cause harm to your computer system. We do not accept any responsibility for any damage or interference to your computer system in connection with any use of this Service.
5.2 This Services is provided for use in Australia only. We do not warrant that use outside of Australia is permitted or authorised.
5.3 Whilst we make endeavours to protect data transmissions via this Service, no data transmissions over the Internet can be guaranteed as entirely secure. Any data or information which you transmit or download is done so at your own risk.
5.4 We do not warrant, represent, authorise or endorse the reliability, accuracy or completeness of any Material published on our website or on any third party website that links from the Service or our website (including third party display advertisements). You are responsible for assessing the accuracy of the Material and rely on it at your own risk.
6 Intellectual Property & Confidentiality
6.1 All Material on the Site or Service is owned by us or under licence to us and is protected under the Copyright Act 1958 (Cth) and international copyright law and conventions. All trade marks, copyright and other intellectual property rights inherent, and used in relation to this Site and Service, will continue to be our property or the property of the relevant third party owners (“Intellectual Property Rights”). We reserve the right to protect and enforce our rights to our property to the full extent of the law.
6.2 Use of the Services does not entitle you to any rights or entitlements in relation to the Intellectual Property Rights.
6.3 You may only copy or reproduce the Material on this Site for the purpose of browsing or making a copy of reports and records for your own use, provided that such use constitutes fair dealing under the Copyright Act 1958 (Cth). You must not alter or modify the Material in any way or remove any legal notice associated with it. Any use of Material outside of this permission will only be legally allowable with prior written consent from us or the third party owner.
6.4 We acknowledge that we may be given access to certain Confidential Information by the Client in the course of providing the Services. We agree to only use such information for the purposes of providing the Services, and not disclose it to any third party unless and until it is required to be disclosed by law.
6.5 Each party must not use or disclose the Confidential Information of the other party, except solely for the purpose of performing its obligations under this Agreement.
6.6 On termination or expiry of this Agreement, each party must immediately return to the other party or delete or destroy all Confidential Information of the other party in its possession or control, except to the extent that the party may be required to keep copies by law.
6.7 Neither Party may use the others name, branding or trade marks in any public documents such as marketing materials, without the other Party’s prior written permission.
6.8 This clause survives expiry or termination of this Agreement.
7 Indemnity, Limitation of Liability & Australian Consumer Law
7.1 You agree to indemnify us and our directors, employees, agents, advisors and representatives from any claim or demand, including reasonable legal costs, made by any third parties against us due to or arising out of your unlawful use, wilful, negligent or fraudulent acts or omissions and any breach of this Agreement by you, or the infringement by you of our or a third party’s Intellectual Property Rights.
7.2 We will not be liable for any failure to perform or any delay in performing our obligations under this Agreement if that failure or delay is caused or due to anything beyond our reasonable control, including without limitation any natural disaster, unavoidable incident, actions of third parties (including without limitation, government or regulatory authorities, suppliers, software providers, telecommunication providers, or hackers), software or equipment failure, regardless of whether the circumstances in question could have been foreseen.
7.3 For consumers, our goods and services come with non-excludable guarantees under The Australian Consumer Law (“Consumer Guarantees”), including that services will be provided with due care and skill. You are entitled, at your option, to various remedies under The Australian Consumer Law if these guarantees are not complied with, such as the resupply of services and you may also be entitled to compensation. Nothing in this Agreement excludes, restricts or modifies any of the Consumer Guarantees.
7.4 We make no warranty that the Service will be uninterrupted or error free. Specifically, we do not warrant that you will have continuous access to the Service, and we will not be liable in the event that the Service is unavailable to you due to computer or device downtime attributable to malfunctions, upgrades, viruses, malicious computer code, preventative or remedial maintenance activities or interruption in telecommunications supply.
7.5 Subject to clause 5.3, we will in no way be liable for any loss or damage, including indirect, incidental, special or consequential damages (such as damage for loss of profits, use or data) or the cost of procurement of substitute goods or services, even if we have been advised of the possibility of such loss or damage, arising or resulting from:
(a) your failure to comply with this Agreement;
(b) your use or your inability to use the Service, or
(c) any information provided in connection with the Service.
7.6 This clause survives expiry or termination of this Agreement.
8 Representations and Warranties
8.1 Each party represents and warrants to each other that as at the Start Date and during the term of this Agreement:
(a) they have the legal right and power to enter into and perform its obligations under this Agreement;
(b) this Agreement is valid and binding on them;
(c) they have not suffered an insolvency event;
(d) they maintained, and will at all times, maintain adequate professional indemnity insurance or other insurances suitable for its business operations;
(e) they operate and conduct and will continue to operate and conduct its business in accordance with the requirements and conditions of any Applicable Law;
(f) there is not pending, or to the best of the knowledge of the parties, threatened, any action, suit or proceeding before or by any court or other governmental agency or self-regulatory organisation to which the Client is a party, or to which any of the assets of the Client are subject, which might reasonably be expected to result in any material adverse change in the condition, financial or otherwise, of each party;
8.2 Each party must continuously indemnify each other from and against any and all claims, actions, damages, losses (including consequential loss), liability, cost, charge, expense, outgoing or payment which a party pays, suffers, incurs or is liable for, including legal fees on a full indemnity basis by reason of any matter or thing in respect of any matter or thing being other than as represented or warranted in clause 8.1.
8.3 This clause survives expiry or termination of this Agreement.
9 Dispute Resolution
9.1 Except where urgent interlocutory relief is required, should any dispute arise between the parties, the following process with be undertaken before seeking recourse to any other remedy:
a) Attempt to resolve the Dispute in good faith within 30 business days of either party giving notice of the existence of the dispute to the other;
b) Refer to mediation if the dispute is not resolved within the period above or such further period as mutually agreed between the Parties. The mediation is to be administered by the Australian Commercial Disputes Centre (ACDC) in Victoria and conducted in accordance with their guidelines. Both parties will pay half the mediation costs.
9.2 During resolution of any dispute the Parties will continue to meet their obligations under the Agreement, including provision of the Services and payment of the fees and charges.
10 Interpretation & Miscellaneous
10.1 This Agreement is governed by and construed in accordance with the laws of Victoria, Australia. You agree to submit to the exclusive jurisdiction of the Courts of Victoria (and appeal Courts) in relation to any unresolved disputes.
10.2 This Agreement constitute the entire agreement and understanding between you and us and supersede any and all prior communications, representations, agreements or understandings between you and us with respect to the subject matter of this Agreement.
10.3 If any provision of this Agreement is found to be invalid or unenforceable by a court of law, such invalidity or unenforceability will not affect the remainder of the Agreements provisions which will continue in full force and effect.
10.4 All rights not expressly granted in this Agreement are reserved.
10.5 We shall not be deemed to have waived any of our rights or remedies under this Agreement. No delay or omission on our part in exercising any rights or remedies shall operate as a waiver of such rights or remedies.
10.6 Subject to 1.1, and 1.2, this Agreement constitutes the entire agreement and understanding between you and us and supersedes any and all prior communications, representations, agreements or understandings between you and us with respect to the subject matter of this Agreement.
10.7 All notices given under this Agreement must be in writing, by means including registered post, hand, facsimile or email to the other party to the either the contact person specified in a previous agreement, or from an authorised representative of the Client or us.
10.8 You hereby authorise us to disclose and grant access to your account within the Service, to law enforcement and government authorities and agencies in accordance with their lawful requests.
10.9 We may assign or otherwise deal with our rights and subcontract and novate our obligations under this Agreement by written notice to you without your prior written consent.
10.10 Each party will bear its own direct and indirect costs, including legal costs, related to the preparation of and performance of this Agreement.
10.11 Termination or expiry of this Agreement will not affect the rights of the parties, which may have accrued before the termination or expiry date, or the terms of this Agreement which by their nature survive termination or expiry.