netwealth - ASX pricing data terms and conditions

ASX pricing data terms and conditions

Netwealth has entered into an arrangement with a member of the ASX Group under which Netwealth is authorised to provide certain registered users of our services with certain rights to access and use securities pricing data disseminated by the Australian Securities Exchange, a market operated by ASX Limited ABN 98 008 624 691 (the ASX), via its ‘Marketsource’ product.

The terms and conditions below (the ASX Pricing Data Terms) govern your access to and use of that ASX data (which is referred to in these ASX Pricing Data Terms via the defined terms ‘Information’ and ‘MarketSource Products’). If you access, store, use or disclose any Information via Netwealth’s services or website, you will be taken to have agreed to these ASX Pricing Data Terms.

Definitions

In these ASX Pricing Data Terms the following terms have the meanings given below:

‘ASX Group’ means ASX Operations and its Related Bodies Corporate;

‘ASX Guide’ means the document titled ‘ASX Market Information Products & Services Guide’ published by ASX Operations, a copy of which may be accessed at www.asxonline.com;

‘ASX Operations’ means ASX Operations Pty Limited;

‘ASX Software’ means any software owned or licensed to ASX Operations and used to store, process, display or distribute the Information;

‘Broker Specific Information’ means the information specific to a Participant that instigated a transaction on either the ASX’s ITS or Sycom trading system and which is not distributed by ASX Operations to other Participants, including but not limited to, the following:

Client references on orders and trades
Iceberg quantities on orders
The Broker Identifier or Broker name associated with an order or trade in relation to Cash Market Products other than Warrants
The unique identifier of a Trading Participant allocated by the ASX pursuant to the ASX Market Rules, i.e. the Broker Number, in relation to Cash Market Products other than Warrants
Some order types, e.g. SHL - Short Sell, PST – Price Stablisation
Signum (DTR identifier) on orders and trades
Expiry dates on orders
The short sell parameter on own trades
Trades with condition codes BP (Booking Purposes), LN (Loan) or LR (Loan Return).

‘Claim’ means any claim, demand, action or proceeding (whether based in contract, tort (including negligence), statute or otherwise;

‘Confidential Information’ means:

(a) any information relating to any business conducted by ASX Operations and the ASX Group and their respective customers, personnel, policies or business strategies;

(b) information comprised in or relating to the ASX Software, the Information or the Documentation;

(c) that part of all notes and other records prepared by you or by any other Subscriber Firm or End User based on or incorporating the information referred to in paragraph (b); and

(d) all copies of the information and those parts of the notes and other records referred to in any of paragraphs (a), (b) or (c);

‘Delayed Information’ means the Real Time Information that has been delayed for a minimum period specified in the ASX Guide after its initial dissemination by ASX Operations;

‘Derived Information’ means any part of the Information (excluding Restricted Information or Broker Specific Information) or any data derived in any way from the reformatting, manipulation or processing of the Information (excluding Restricted Information or Broker Specific Information) or any part of the Information (excluding Restricted Information or Broker Specific Information);

‘Device’ means a computer terminal, software application, data receiver, display unit or other technical service that can access the Information;

‘Documentation’ means all documentation referenced in the ASX Guide and includes any documentation relating to the ASX Software;

‘End of Day or EOD Information’ means Information that is disseminated after close of trading or such other time and subject to such other terms as ASX Operations may publish in the ASX Guide;

‘End User’ means an employee of a Subscriber Firm, a contractor acting under the direction of a Subscriber Firm in the ordinary course of their business, or a Registered Client of the Subscriber Firm who can access the Information;

‘Information’ means each or any of the Real Time Information, Delayed Information, EOD Information, and Restricted Information and may include information licensed to ASX Operations by its Suppliers;

‘Intellectual Property Rights’ means all present and future intellectual property and industrial rights whether conferred by statute, at common law or in equity and wherever existing, including:

(a) patents, designs, copyright, rights in circuit layouts, trade marks, know how, brand names, domain names, inventions, product names, trade secrets and any other rights subsisting in the results of intellectual effort in any field, whether or not registered or capable of registration;

(b) any application or right to apply for registration of any of these rights;

(d) all renewals and extensions of these rights;

‘Losses’ means all liabilities, costs, losses, damages, expenses (including legal expenses on a solicitor/client basis), or other outgoings of whatsoever kind and howsoever arising (including negligence) or liability incurred or suffered arising from any Claim, in each case whether such loss is direct, indirect, special or consequential and whether or not ASX Operations or Netwealth (as the context requires) were advised in advance of the possibility of such loss;

‘MarketSource Products’ means the Information and other related products and services including any ASX Software and Documentation;

‘New Original Work’ means a work determined by ASX Operations to be a new original work, being created by you using the Information, where the Information has been processed or modified to such an extent that the result cannot be recognised as, traced back to or reverse engineered to display the Information, nor can the new original work be used as a substitute for the Information;

‘Non-Display Use’ means distribution, use or processing of the Information or Derived Information that does not involve display of the Information or Derived Information on a Device in a way that can be seen or heard, details and examples of which may be specified in the ASX Guide;

‘Participant’ means Trading Participants as that term is defined in the ASX Market Rules;

‘Personnel’ means officers, employees, agents and contractors;

‘Real Time Information’ means:

(a) any part of the Information, other than Restricted Information or Broker Specific Information, from the time of dissemination by ASX Operations up to and including the time period specified for Delayed Information; and

(b) any Derived Information;

‘Registered Client’ means the retail clients of our services who hold one or more accounts with Netwealth. It does not include every customer of ours that has a user name and password to access information via our website or other internet based distribution platform. Nor does it include financial planners and other investment professionals;

‘Related Body Corporate’ has the meaning given to that term in the Corporations Act 2001 (Cth);

‘Restricted Information’ means the ITS information that may not be divulged to anyone who is not a ‘Designated Trading Representative’ as designated by ASX Operations or another member of the ASX Group, except where that person is employed by the Participant and has a need to access that information as part of their duties. The following information is prescribed as Restricted Information in the ITS Reference Manual; information that is contained in the:

(a) Bulletin Board Window;

(b) Broker List on ITS Info Link;

‘Subscriber Firm’ means any person, company or organisation, other than us or our Personnel or Sub-vendor, who can access the Information directly or indirectly via our Service;

‘Sub-vendor’ means any person, company or organisation that receives access to Information, other than Restricted Information or Broker Specific Information, directly or indirectly from our Service for the purposes of redistribution and:

(a) meets the criteria specified in the ASX Guide; and

(b) complies with any other terms specified in a MarketSource distribution agreement and the ASX Guide concerning redistribution of that Information;

‘Suppliers’ means any third party who makes its information available to ASX Operations (under a license or otherwise) as part of the Information and any supplier of goods or services (including any hardware, ASX Software and Documentation) which are used directly or indirectly by ASX Operations to supply the MarketSource Products;

‘Your Service’ means any service operated by you or your Related Body Corporate that includes the Information in any form; and

‘Your System’ means the computer systems (including all hardware, software and any associated technology) and internal communications networks installed at or used by you to interface with the MarketSource Products, and to store and process the Information.

Interpretation

In these ASX Pricing Data Terms, a reference to a manual, guide, specification, information pack or other document published by the ASX Group means the manual, guide, specification or document as amended, varied, renamed, substituted or replaced from time to time.

Supply of Marketsource Products

We may, in our absolute discretion, make the MarketSource Products available to you at such times, in such formats and subject to such terms and conditions as we may determine in our absolute discretion from time to time. Our ability to provide the

MarketSource Products is subject to (among other things) the terms and conditions of our arrangement with ASX Operations. As such, we give no undertaking to any person in relation to the availability, continuity, accuracy, timeliness or completeness of the MarketSource Products. In addition, we may change, suspend or discontinue any of the means of supply of the Information for any reason or no reason, with or without notice to you.

Specific terms affecting the MarketSource Products and their use by you are set out in the ASX Guide and will bind you as if they were incorporated expressly into these ASX Pricing Data Terms. Those terms in the ASX Guide may be amended from time to time.

Notwithstanding any other part of these terms and conditions, we are not responsible for or otherwise liable for any communications, performance, security or data corruption problems, disconnection of transmission services or failures or delays in transmission of the MarketSource Products connected with telecommunications services and lines and other means of transmission provided by third parties.

Accessing, Using & Disclosing the Information

You must not use the Information, or permit anyone else to access, receive or use the Information, other than as permitted by these ASX Pricing Data Terms and you must not supply or make available, or permit to be supplied or made available, Information to any other third person unless it is subject to a MarketSource distribution license and it executes an agreement with ASX Operations in such form as ASX Operations requires, or is otherwise approved by ASX Operations in writing.

You may:

(a) store and process the Information in Your System; and

(b) incorporate the Information into Your Service(s),

provided that you comply with the following requirements in relation to that access and use, and with any requirements that ASX Operations publishes in the ASX Guide from time to time, and provided further that your use, display and distribution of the Information do not affect the accuracy of the Information you receive.

You may use the Information solely for your own internal business purposes. You must not transfer or publish to third parties all or part of the Information except where allowed to do so under these ASX Pricing Data Terms (if applicable) or with ASX Operations’ prior written permission.

You must:

(a) recognise the Intellectual Property Rights and ASX Operations’ rights, and those of its Suppliers, to legal remedies in respect of the Information; and

(b) allow Netwealth, ASX Operations or their respective our authorised representatives to enter your premises and audit your systems, records and usage of the Information;

(c) obtain and provide any consents needed for Netwealth, ASX Operations or their respective our authorised representatives to review and receive personal data, where necessary, for the purpose of verifying compliance with your obligations to us under these ASX Pricing Data Terms;

You must not:

(a) allow any person other than an End User of Netwealth to access the Information; or

(b) use the Information for an illegal purpose or a purpose not authorised under these ASX Pricing Data Terms.

Your access and use of the Information must not affect the accuracy of the Information received from ASX Operations.

You must keep confidential any and all Confidential Information, and must not disclose it to any third party without the prior written consent of ASX Operations.

ASX Operations or Netwealth will be entitled to discontinue any supply of Information that would otherwise be permitted under these ASX Pricing Data Terms if ASX Operations or Netwealth, each acting in its sole discretion, advises that the recipient has failed to meet the requirements of our agreement with ASX Operations or of these ASX Pricing Data Terms. You must likewise discontinue supply in the event that you are or become aware of any noncompliance of this nature.

You must promptly notify us of any unauthorised, improper or unlawful use of the MarketSource Products or infringement of the Intellectual Property Rights in the MarketSource Products that comes to your notice.

On termination of our agreement with ASX Operations for any reason, we will be entitled to destroy all of the Information in our systems, with or without notice to you.

ASX Operations has reserved the right to enter into a direct agreement with any of Netwealth’s Subscriber Firms. ASX Operations may elect to do this in two ways:

(a) in respect of specific Subscriber Firms, in which case ASX Operations will provide Netwealth with notice detailing the relevant Subscriber Firms and Netwealth will then liaise with those Subscriber Firms regarding that requirement; or

(b) by identifying a category or segment of Subscriber Firms, in which case ASX Operations will publish its requirements in the ASX Guide.

You are not permitted to use the Information to establish, maintain or provide, or assist in establishing, maintaining or providing the ability to trade in ‘Financial Products’ or a financial market for trading in ‘Financial Products’ (in each case, as defined in the Corporations Act 2001 (Cth)) unless the relevant activity is specifically authorised by law.

Subject to the foregoing provisions you may, only with the prior written consent of ASX Operations (which may be withheld in its absolute discretion) use the Information for the purpose of creating a New Original Work. ASX Operations reserves all rights to determine whether or not any processed Information constitutes a New Original Work. ASX Operations may, in its absolute discretion, introduce licence fees for the right to use the Information to create New Original Works. If ASX Operations determines that a work is a New Original Work, ASX Operations acknowledges that You own the Intellectual Property Rights in that New Original Work.

You may publish, on an ad-hoc basis in written or oral communications with clients, insubstantial amounts or limited extracts of static Information to your clients in connection with your ordinary business as a provider of financial services or financial advice, provided:

(a) it does not constitute regular or systematic distribution, display or processing of the Information;

(b) it does not involve the provision of Real Time Information or any other form of continuously updating or streaming Information; and

ASX Operations reserves all rights to determine whether communications including Information constitute limited extracts for this purpose and to limit or withdraw rights to provide limited extracts of the Information. ASX Operations may publish examples of what constitutes “limited extracts” and “systematic” distributing, display or processing of the Information in the ASX Guide.

Records and Breach Notification

You must retain all necessary records concerning the access to and use of the Information by all Subscriber Firms and End Users for a period of 3 years. You must also promptly advise us of any case where you have evidence or reasonable cause to believe that you are in breach of any one or more of these ASX Pricing Data Terms.

Liability

Neither we nor ASX Operations or any other member of the ASX Group will be liable to you or to any third party (whether in contract, tort, under statute or otherwise (including in each case negligence) for any Losses including but not limited to any of the following types of loss or damage (in each case whether direct, indirect, special or consequential) arising under or in relation to these ASX Pricing Data Terms:

(a) any loss of profits, business contracts, anticipated savings, goodwill, or revenue; and/or

(b) any loss or corruption or destruction of data; and/or

whether or not we or ASX Operations were advised in advance of the possibility of such loss or damage.

To the extent permitted by law, we exclude all conditions and warranties implied by statute, general law or custom relating to our obligations under these ASX Pricing Data Terms.

Representations

We do not represent or warrant that the Information will be complete, accurate or error-free, nor do we represent or warrant that the supply of the Marketsource Products or related services will be free of interruption.

Indemnity

You must at all times indemnify, hold harmless and release us, Our Related Bodies Corporate and our and their Personnel (‘those indemnified’) from and against any Losses or liability incurred or suffered by any of those indemnified arising from any Claim that any person may bring against any of those indemnified where such Claim arose out of or in connection with:

(a) a breach by you, or by a Subscriber Firm or End User associated or related to you (if any), of any obligation arising under these ASX Pricing Data Terms;

(d) reliance by any third party on the Information.

We exclude any liability to you and to any other Subscriber Firm or End User (whether based in contract, tort (including negligence), statute or otherwise). You must at all times indemnify, release and hold harmless those indemnified from and against any Losses in connection with a Claim by any other Subscriber Firm or an End-User against those indemnified in connection with the supply or non-supply of the MarketSource Products, irrespective of whether the acts or omissions of Netwealth, ASX Operations or their respective related parties may have caused or contributed to the Losses.

You acknowledge and agree that ASX Operations’ Suppliers exclude any liability for any Claims which may be made against them. You must at all times indemnify, release and hold harmless those indemnified from and against any Losses in connection with a Claim against ASX Operations’ Suppliers by you or any other Subscriber Firm or End User in connection with the supply or non-supply of the MarketSource Products.

Intellectual property rights

ASX Operations, members of the ASX Group, ASX Operations’ Suppliers or their respective licensors, retain all Intellectual Property Rights in or to the ASX Software, Documentation and the Information to the extent that those Intellectual Property Rights exist under the law from time to time.

It is acknowledged that ‘OMX’ and ‘CLICK XT Exchange System’ are trademarks of OMX Technology AB.

Nothing in these ASX Pricing Data Terms is to be understood as an abandonment, revocation, assignment or denial by either ASX Operations, the members of the ASX Group or ASX Operations’ Suppliers of their Intellectual Property Rights or those of their licensors.

You must notify us immediately if You become aware of any:

(a) unauthorised copying or use of the ASX Software, Documentation, or the Information, or

(b) breach of confidence by any person to whom You have disclosed part or all of the ASX Software, Documentation or the Information.

We make no representation, and we expressly disclaim any liability and responsibility, in connection with your use of the ASX Software, Documentation or the Information in accordance with these ASX Pricing Data Terms infringing the Intellectual Property Rights of any person. Confidential information

You expressly acknowledge that the Confidential Information is confidential to ASX Operations, members of the ASX Group or their respective Suppliers. .

Except to the extent expressly permitted under these ASX Pricing Data Terms, you agree to keep confidential and not to use or disclose to any other person the Confidential Information provided that this obligation of confidentiality does not extend to information that (whether before or after these ASX Pricing Data Terms take effect):

(a) is rightfully known to or in the possession or control of you and not subject to an obligation of confidentiality on you;

(b) is public knowledge (otherwise than as a result of a breach of these ASX Pricing Data Terms or an obligation of confidentiality owed to Netweatlh or to ASX Operations or other members of the ASX Group) except in the case of the Information in relation to which the confidentiality obligations contained in these ASX Pricing Data Terms will continue to apply to you irrespective of whether it becomes public knowledge; or

Nothing in these ASX Pricing Data Terms relating to the receipt of Broker Specific Information is intended to impose an obligation of confidentiality on you in respect of information of the kind described in paragraph (b) above.

You must, at your own expense, ensure at all times that each person to whom Confidential Information has been or will be disclosed is made aware of the obligations of confidentiality and will keep the Confidential Information secret.

At the request of ASX Operations or Netwealth, you must procure the execution of a confidentiality agreement by each person to whom the Confidential Information has been or will be disclosed.

Terms and conditions