Client agreement

Last updated 1 October 2021

You're welcome to download the Openmarkets client agreement here as a pdf, or read below (note: this is page 1 of 2 – page 2 is here). The power is yours.

Part 1 - Equities terms & conditions

Terms of your agreement with Openmarkets Australia Ltd (ABN 38 090 472 012, AFSL 246705) (Openmarkets).

1. Your trading account and agreement with Openmarkets

1.1 By completing an application form you:

a. establish a Trading Account with Openmarkets through which you can place Orders to transact on a Securities Exchange; and

b. you accept and agree to be bound by the terms and conditions set out in this document (Terms and Conditions) which become a legally binding agreement between you and Openmarkets.

1.2 You must read and understand these Terms and Conditions. If you do not understand these Terms and Conditions, or any part of them, we recommend you obtain advice from your lawyer before you agree to them.

2. Role of Openmarkets and our relationship with you

2.1 Openmarkets is a Trading Participant of one or more Securities Exchanges. Openmarkets is also admitted as a Clearing Participant in accordance with the operating rules of ASX Clear, a wholly owned subsidiary of ASX. If you wish to buy or sell or otherwise deal in Traded Products on a Securities Exchange, the Intermediary will (as your agent) communicate your Order to Openmarkets. Openmarkets will, subject to these Terms and Conditions, execute or facilitate that Order on your behalf and will clear and settle the Transactions that result from the execution or facilitation of your Orders.  Accordingly, Openmarkets will carry the obligations to complete the sale or purchase, together with all the obligations which are ancillary to the completion (Settlement Obligations). Openmarkets must also settle such Transactions as principal with ASX Clear or the relevant counterparty even though the Transaction was entered into on your behalf. Accordingly, your clearing and settlement obligations under the sale or purchase contract are owed directly to Openmarkets and not to the Intermediary.

2.2 In the event that you fail to complete a contract in accordance with the ASX Clear Rules or fail to pay the amounts due in respect of a Transaction, Openmarkets has direct rights against you, including rights of sale under the Exchange Rules and ASX Clear Rules and those described in these Terms and Conditions.

3. Application of Securities Exchange rules

You acknowledge and agree:

a. to comply with these Terms and Conditions, all applicable laws, the Exchange Rules, ASX Clear Rules and ASX Settlement Rules and the directions, decisions and requirements of each Securities Exchange and the customs and usages of the Market. Upon request, you are able to inspect copies of the Exchange Rules, ASX Clear Rules and ASX Settlement Rules at the Intermediary’s offices; and

b. that all Transactions are subject to the Exchange Rules, ASX Clear Rules, the directions, decisions and requirements of a Securities Exchange and the customs and usages of the Market, the correction of errors and omissions and, if the sale or purchase is in relation to Traded Products approved for settlement by ASX Settlement, the ASX Settlement Rules.

4. Orders and instructions

4.1 You agree that:

a. if you wish to place any Order or provide any instructions in respect of your Trading Account, you must do so with the Intermediary (such communications to be given in the form and manner agreed with the Intermediary from time to time), and you authorise the Intermediary, as your agent (and not as the agent of Openmarkets), to communicate your Order and other instructions or information to Openmarkets;

b. any Order is subject to terms agreed between Openmarkets and the Intermediary in relation to the execution and processing of Orders;

c. Openmarkets may provide communications to you through the Intermediary and not directly to you.

4.2 You represent and warrant to Openmarkets that you have authorised the Intermediary to communicate and provide instructions to Openmarkets on your Trading Account on your behalf and have access to all and any information relating to the Trading Account or services provided by Openmarkets. Openmarkets will not act on any Orders or other instructions or information communicated directly to it by you (and not the Intermediary).

You may only terminate the Intermediary’s authority to act on your behalf by terminating this agreement.

4.3 As a Participant of one or more Securities Exchange, subject to your instructions, OpenMarkets is required to handle and execute Orders in accordance with the Competition Market Integrity Rules. A copy of the Openmarkets Best Execution Policy as at the date of these Terms and Conditions is set out in Schedule 4. Openmarkets may from time to time amend its Best Execution Policy and make such amendments available on its website or through the Intermediary, or otherwise notify you of the amended Best Execution Policy.

4.4 Openmarkets may at any time, in its absolute discretion, refuse to accept any Order from, or execute Orders for you. For example, Openmarkets may refuse to accept your Order if it would require Openmarkets to act otherwise than in accordance with its Best Execution Policy.

4.5 Subject to any instructions from you, Openmarkets will generally execute Orders in the sequence in which they are received. However, you acknowledge and agree that:

a. your Order may be automatically crossed against other orders before reaching the Market;

b. Openmarkets may not be aware of principal orders that are being (or may be) executed, and that direct market access arrangements and program trading may make it impossible to prevent principal orders from being executed at the same time as (or before) your Order. Accordingly, you agree that Openmarkets may execute principal orders where your Order on the same terms is outstanding and that these Terms and Conditions constitute disclosure as required by the Market Integrity Rules. Unless you notify Openmarkets to the contrary, you will be taken to have consented to Openmarkets (and/or any of its related bodies corporate) trading as Principal with you and agree to pay such commission (if any) on such transactions, each time you place an order with Openmarkets through the Intermediary;

c. you will be charged the normal rate of commission by the Intermediary for Orders which are crossed with Openmarkets’ principal orders unless, if you are a retail client (as defined in the Corporations Act), we are not permitted to do so under the Corporations Act or the Market Integrity Rules; and

d. an Order once accepted by Openmarkets may not be transacted and an Order to transact an AQUA Product through the ASX Managed Fund Settlement Service is subject to acceptance by the issuer of the product and an application for issue or redemption of a product may be rejected; and

e. an Order to transact in an AQUA Product is not traded on a Securities Exchange and comprises an application by you to the relevant product issuer. You acknowledge and agree that:

(i) Openmarkets does not control and cannot procure the issue or redemption of AQUA Products or the processing of requests for issue or redemption of,

or

switch between, AQUA Products;

(ii) Openmarkets has no liability to you or the Intermediary with respect to any action or failure to take action by an issuer or other Settlement Participant in connection with a request for issue, redemption or switch of AQUA Products including (without limitation) an issuer’s failure to issue or redeem AQUA Products or make available redemption monies or to deliver AQUA Products.

5. Orders relating to sales

5.1 You agree that whenever you place a sale Order with the Intermediary, you must notify the Intermediary whether or not your sale Order is a covered short sale – i.e. a sale where you have, at the time you place the sale Order with the Intermediary, a legally binding commitment from a 

securities lender to lend the securities to you under a Securities Lending Arrangement. Where your sale relates to a covered short sale, you must also inform the Intermediary at the time of placing the sale Order:

a. the number of Traded Products to be sold that are to be delivered under the Securities Lending Arrangement;

b. a description of the Traded Products (e.g. fully paid ordinary shares); and

c. the name of the entity that issued the Traded Products (e.g. BHP Billiton Limited).

5.2 You acknowledge that Openmarkets will not be permitted to execute a sale Order for you unless you have informed the Intermediary whether or not the sale Order relates to a covered short sale. You agree that, each time you place a sale Order with the Intermediary and notify the Intermediary and notify the Intermediary that the sale Order relates to a covered short sale, you will be taken to have warranted and represented to Openmarkets and the Intermediary that the sale will meet the requirements and conditions of the Corporations Act, Corporations Regulations and ASIC Class Orders (if any) (as amended from time to time) relating to covered short sales, (including without limitation that you have obtained a legally binding commitment from a securities  lender to lend the relevant securities to you under a Securities Lending Arrangement).

6. Orders to purchase Warrants, Partly Paid Securities or relating to ASX BookBuild

If you place an Order to purchase Warrants, the terms in Schedule 1 will apply to you. If you place an Order to purchase Partly Paid Securities, the terms in Schedule 2 will apply to you. If you place an Order to instruct for a Bid to be placed on your behalf in relation to an offer of Financial Products on ASX BookBuild, the terms in Schedule 5 will apply to you.

7. The Intermediary’s use of a DMA Service

7.1 Openmarkets may provide a direct market access service (DMA Service) to the Intermediary under which the Intermediary may place your Orders directly into the Trading Platform through an electronic automated client order process. 

You acknowledge that if Openmarkets provides a DMA Service to the Intermediary:

a. there may be delays in the processing, execution, amendment or cancellation of an Order entered through the DMA Service and:

(i) an Order may be wholly or partly filled before an instruction for its amendment or cancellation is processed; and

(ii) you remain liable to settle the original Order, until any relevant amendment or cancellation is effected;

b. the execution of an Order placed through the DMA Service may be delayed by filters or other electronic features of the electronic system;

c. Openmarkets is not responsible for the processing, execution or cancellation of any Orders submitted through the DMA Service, regardless of who enters such Orders and regardless of whether or not there is an error in the Order entry or for any delays  in relation to the same; 

d. except as required by law, Openmarkets makes no representations or warranties express or implied with respect to the DMA Service;

e. there are significant risks in trading through a DMA Service because it is serviced by means of computer and telecommunications systems, even where generally accepted industry standards and practices are followed, including that your data may not be protected, and there are risks that other users of the DMA Service, institutions or intermediaries may be able to see your Orders and other communications relating to trading and execution without your (or Openmarkets’) consent and that third parties (including persons on private networks) will have the ability to attach to your network; and

f. Openmarkets may terminate the Intermediary’s participation in the DMA Service at any time without notice to you.

8. Client’s online access and use of a DMA Service

8.1 Openmarkets may provide a DMA Service to you under which you may place your Orders directly into the Trading Platform through an electronic automated client order process. You acknowledge that if Openmarkets provides the DMA Service to you, the terms in Schedule 3 will apply.

8.2 Openmarkets may issue to you a secure login for the purpose of accessing your Trading Account. You agree:

a. to keep your login details confidential and to not disclose these details to anyone. You and are solely responsible for the use of any login details and for keeping them secure;

b. to set your password to contain characters unique or unusual, and not common or predictable in any way;

c. to change your password regularly or when prompted;

d. to make reasonable efforts to maintain security over any computer through which you log on to your Trading Account;

e. Openmarkets makes no representation or warranty as to the security of data stored either on our web server or on the web servicers of parties engaged by us to provide all or part of our services; and

f. upon becoming aware of a breach of security, you must notify us immediately and suspend the use of all electronic communications until we are satisfied that appropriate steps have been taken to ensure the security of electronic communications with you.

9. Openmarkets’ right to require the Intermediary to refuse to accept Orders

You acknowledge that Openmarkets may at any time in its absolute discretion direct the 

Intermediary to:

a. refuse to accept you as a client or not to accept Orders from you; or

b. refuse to accept a particular Order from you.

10. Linked Cash Account

10.1 To settle transactions through your Trading Account, other than transactions settled through a third party approved by Openmarkets (eg. via DVP or a margin lending provider) you must have a linked cash account (Cash Account) with one of our approved providers. When you open a Trading Account with us, you instruct Openmarkets open for you a Cash Account with a provider selected by you from our approved list. You appoint Openmarkets with the authority to operate this Cash Account on your behalf subject to these Terms.

10.2 You agree to comply with the Cash Account provider’s terms and conditions, appoint us with general transaction authority on the Cash Account and provide other account-related information. You authorise Openmarkets to have access to Your Cash Account to:

a. verify the Cash Account balance and any other details we require;

b. display the daily balance of the Cash Account through your Trading Account;

c. withdraw and deposit funds for settlement of a Transaction;

d. withdraw funds to pay to us amounts you owe us under these Terms and Conditions (including our fees and any fees charged by a related third party); and

e. deposit funds from automatic dividend crediting (if applicable) and any other credits.

10.3 To facilitate withdrawals from, and deposits to, your Cash Account, the Cash Account provider may require that these payments be processed through a clearing account held by Openmarkets with the CMA provider. Your payments made through the clearing account are aggregated into the clearing account with payments of other Openmarkets client account holders for the purpose of transferring a single payment between the clearing account and Openmarkets. You acknowledge that the clearing account is a payment facilitation account and may not be a trust account, and if not a trust account, is not subject to the trust account rules and protections. For the purpose of the client monies rules of  Part 7.8 of the Corporations Act, you direct Openmarkets to facilitate payments for your Cash Account using the Openmarkets clearing account of your Cash Account provider.

11. Purchases and Sales

11.1 You must ensure that payment in full is received by Openmarkets (and not the Intermediary) before the Settlement Date and Time. Unless we agree otherwise, you must ensure there are sufficient funds in your Cash Account (in the case of a purchase) and sufficient Financial Products in your Trading Account (in the case of a sale) to meet your Settlement Obligations before an Order is placed and Openmarkets may assess whether your Cash Account or Trading Account has such funds or products before accepting and Order from you. You agree you will not transfer funds out of your Cash Account before the Settlement Date if such a transfer would result in you being unable to meet your Settlement Obligations.

11.2 In accordance with the provisions of the Corporations Act 2001 (Cth) (Corporations Act), and the regulations made under the Corporations Act, pending settlement by you, these Terms and Conditions and the relevant Confirmation (if any) constitutes notice to you that Openmarkets may deposit the Traded Products purchased for you in a particular transaction as security for a loan if Openmarkets has received and paid for such Traded Products on your behalf.

11.3 You must deliver to Openmarkets all documents and security holder information (including  the holder identification number or personal identification number and, if applicable, holder reference number) (Security Holder Information) no later than two business days before the Settlement Date and Time. Credits in respect of sales are not available until the latest of:

a. the Settlement Date and Time;

b. when all documents and Security Holder Information have been received by Open Markets in deliverable form; and

c. all amounts due and payable by you to Openmarkets or the Intermediary have been paid.

11.4 Unless Openmarkets has agreed alternative arrangements with you, Openmarkets will pay all sale proceeds directly to you. 

12. Settlement Date and Time

The “Settlement Date and Time” for sales or purchases is the date and time that is specified on the front of the relevant Confirmation. If no date and time are specified or no Confirmation is required to be given, the Settlement Date and Time is 9.00am (Sydney time) on the second Business Day after the execution of the Transaction. The Intermediary has no authority to extend the Settlement Date and Time.

13. Warranties by the client

You represent and warrant that before placing any Order with the Intermediary:

a. you will be in a position to pay for any Traded Products purchased and have a presently exercisable and unconditional right to vest any Traded Products sold in  the buyer, to enable settlement at the Settlement Date and Time; and

b. if your Order relates to the purchase of a Partly Paid Security, you have made arrangements (to Openmarkets’ satisfaction) to pay to Openmarkets a sufficient amount to cover any liability arising from all possible future calls in respect of the Partly Paid Securities; and

c. you will not place an Order for an AQUA Product unless you have received and read the Product Disclosure Statement relating to the product and the ASX Fact Sheet in relation to the ASX Managed Fund Settlement Service.

14. Confirmations

14.1 You will be given confirmations as required by the Corporations Act and the Market Integrity Rules (Confirmation). You authorise Openmarkets (on its own behalf and on behalf of the Intermediary) to give Confirmations to you electronically to the email address notified to Openmarkets by the Intermediary on your behalf from time to time for this purpose. If the Trading Account is for joint holders and an email address is not provided for a joint holder, that joint holder authorises Openmarkets to send any Confirmation to that joint holder at the email address provided for the Trading Account and by so sending the Confirmation Openmarkets will be taken to have sent the email to that joint holder.

14.2 You agree to promptly check the accuracy of every Confirmation sent to you and to notify the Intermediary immediately of any error that you consider may have occurred. In the absence of such notification from you within 24 hours, you will be taken to have accepted the accuracy of the Confirmation.

14.3 A Confirmation may at any time be re-issued to you in order to correct any errors or omissions and the terms and conditions of the original Confirmation will apply in relation to the reissued Confirmation.

14.4 Where Openmarkets enters into multiple Transactions in order to complete your Order, you authorise Openmarkets to accumulate those Transactions (whether executed on the same Securities Exchange or otherwise) on a single Confirmation and to specify the volume weighted average price for those Transactions on that Confirmation. If requested by you, Openmarkets will, if required under the Market Integrity Rules, give you a statement of all the individual prices of the relevant transactions which are accumulated and averaged in a confirmation.

14.5 If you are a Wholesale Client for the purposes of the Market Integrity Rules, Openmarkets may elect not to give any Confirmations to you in relation to Transactions executed for you. If Openmarkets so elects, these Terms and Conditions are taken to be the notification required to be given by Openmarkets to you under the Market Integrity Rules.

15. Failure to Settle

15.1 You acknowledge that, if you fail to make any payment due to Openmarkets or deliver any documents or Security Holder Information to Openmarkets or otherwise comply with the Settlement Obligations that you owe to Openmarkets in relation to a Transaction in accordance with these Terms and Conditions or the relevant Confirmation, if any (fail to settle), Openmarkets may do any one or more of the following:

a. charge an administration fee calculated by reference to the additional cost which may be incurred by Openmarkets (including any fail fees imposed by a Securities Exchange or ASX Clear) as a result of your failure to settle;

b. levy a default charge on the amount from time to time outstanding at a rate of up to 15.0% per annum;

c. sell out (or procure the sellout of) any Traded Products purchased (and you are fully responsible for any loss in connection with such sale) and apply the proceeds in reduction of your liability to Openmarkets and to recover Openmarkets’ costs in so acting;

d. buy in (or procure the buy in of) any Traded Products sold (and you are fully responsible for any loss in connection with such purchase) and recover Openmarkets’ costs in so acting;

e. sell out (or procure the sellout of) any Traded Products otherwise held on your behalf (and you are fully responsible for any loss in connection with such sale) and apply the proceeds in reduction of your liability to Openmarkets and to recover Openmarkets’ costs in so acting;

f. apply any cash held by Openmarkets or the Intermediary (or to which they have access) on your account (including in a Cash Account or Trading Account), or payments received for or from you in reduction of your liability to Openmarkets; or

g. cancel (or instruct the Intermediary to cancel) any of your unexecuted Orders,

h. and you authorise Openmarkets and each of its directors and employees as your attorney to give instructions on your behalf in respect of your Traded Product holdings sponsored by Openmarkets (or a related body corporate or affiliate of Openmarkets) in CHESS, or held by a related body corporate or affiliate of either of Openmarkets or the Intermediary in nominee holdings, and in respect of call deposit facilities or cash management trust accounts on which either Openmarkets or the Intermediary is authorised to give instructions, to enable Openmarkets to realise those Traded Products or funds and apply the proceeds in reduction of your liability to Openmarkets and to recover Openmarkets’ costs in so acting.

15.2 If you fail to settle, Openmarkets may make arrangements on your behalf to ensure that your Settlement Obligations are performed (including by buying-in or borrowing the relevant Traded Products). If you have not met your settlement obligations owed to Openmarkets in respect of a Transaction executed for you by Openmarkets by the Business Day nominated by the Securities Exchange after the relevant Order was executed, it is Openmarkets’ policy (and Openmarkets may be obliged under the ASX Settlement Rules), without any notice to you:

a. in the case of a purchase, to execute a Transaction to close out the failed purchase (by selling the relevant Traded Products); or

b. in the case of a sale, to execute a Transaction to close out the failed sale (by buying in the relevant Traded Products), and recover any resulting loss from you.

15.3 You must pay or reimburse Openmarkets any such administration fees and default charges (together with any GST payable on those amounts) immediately upon demand or at Openmarkets’ option it may deduct such administration fees and default charges (and any GST) from any sale proceeds or other amounts otherwise payable to you.

15.4 The manner in which Openmarkets may exercise or not exercise, or the timing of or any delay in any exercise by Openmarkets of, any right of Openmarkets under this clause is not to be taken to be financial product advice by Openmarkets to you, and you must not represent to any person that it is financial product advice by Openmarkets.

15.5 Openmarkets will not be liable to you for any failure by Openmarkets to exercise (or any delay in the exercise by Openmarkets of) any right Openmarkets may have against you, or any loss incurred by you as a result of Openmarkets not exercising any of its rights against you immediately, or at all, following any failure by you to comply with your obligations. 

15.6 The rights described in this clause 15 are in addition to any rights that are conferred to Openmarkets under the Exchange Rules and the ASX Clear Rules.

16. Cancellations

16.1 Each Securities Exchange has the power under the Exchange Rules to cancel or amend Transactions or Crossings. You authorise Openmarkets to, and agree that Openmarkets may, without your consent, cancel or amend (or request or agree to the cancellation or amendment of) any Transactions or Crossing relating to the sale or purchase (as the case may be) of traded

Products:

a. if requested to do so by the Intermediary in the circumstances contemplated by the Market Integrity Rules (as if the Intermediary were a Trading Participant that executed that Order to which the Transaction or Crossing relates);

b. if a Securities Exchange or a participant of the Securities Exchange exercises its power under the Exchange Rules to cancel or amend (or require the cancellation or amendment of) the Transaction or Crossing; or

c. in the event of an Error or otherwise in the circumstances contemplated in the Exchange Rules.

16.2 Your obligations referred to in clause 11 of these Terms and Conditions, and Openmarkets’ obligations in relation to the settlement of a Transaction, will no longer apply in respect of a cancelled transaction from the time it is cancelled or, in the case of an amended Transaction, apply as amended.

17. Interest on Openmarkets’ trust account

You acknowledge that Openmarkets will retain the interest (if any) earned on monies held in its trust account from time to time.

18. Assignment to the Intermediary of debts owed by you to Openmarkets

If you have not paid any debt to Openmarkets, you acknowledge that Openmarkets may (by notice to you and the Intermediary) assign that debt to the Intermediary and the assigned debt will become an obligation of yours owed to the Intermediary. In the event of such an assignment, the Intermediary (and each of its directors and employees) will have the rights and powers (and may do all the things) set out in clause 16 as if a reference to Openmarkets were a reference to the Intermediary.

19. Instructions by email

You acknowledge and agree that;

a. you are and will at all relevant times be authorised to make communications to the Intermediary (who will pass on those communications to Openmarkets on your behalf) (including as the case may be, to give instructions in respect of transactions in respect of Traded Products) by email;

b. communication by email is not a secure means of communication and involves higher risks of distortion, manipulation and attempted fraud;

c. you authorise the Intermediary and Openmarkets to accept and act without any inquiry upon, communications (including instructions) provided by email which appear to the Intermediary or Openmarkets to have been provided by or for you; and

d. you indemnify the Intermediary and Openmarkets in respect of any and all claims, liabilities, direct or consequential losses, costs, charges or expenses (of any nature) incurred or suffered by the Intermediary or Openmarkets as a result of the Intermediary or Openmarkets acting on communications (including instructions) provided by email. 

20. Indemnity

You must, to the maximum extent permitted by law, at all times and from time to time, indemnify and keep each of Openmarkets and its related bodies corporate and any of their respective directors, officers, contractors, agents and employees (each an Indemnified Person) harmless from and against all liabilities, losses, damages, costs or expenses directly or indirectly suffered by the Indemnified Person and from and against all actions, proceedings, claims for damages made against the Indemnified Person as a result of:

a. any transaction entered into by Openmarkets on your behalf;

b. any delay in the execution of an Order;

c. any failure by you to settle;

d. any other breach by you of these Terms and Conditions;

e. any breach by you of any other agreement with Openmarkets;

f. any breach by you of any representation or warranty made or taken to have been made by you (including without limitation in relation to any disclosure to be made in respect of sale Orders) not being true or correct;

g. any instruction given to Openmarkets by the Intermediary on your behalf;

h. any act or omission of the Intermediary relating to your Cash Account, Trading Account or any Order (whether or not the Order was received by Openmarkets), other than to the extent that the loss has resulted from Openmarkets’ negligence, wilful default or fraud.

21. Fees and commission

Openmarkets will receive payment from Clients of commission or fees. You agree that it is the Intermediary (and not Openmarkets) that is to charge you fees or Commission in respect of Transactions contemplated by this agreement (other than any fee or charge payable directly to Openmarkets as set out herein or in the Openmarkets Financial Services Guide) and Openmarkets receives such money as the agent of (and not as trustee for) the Intermediary. Unless expressly stated otherwise, all fees, charges and other consideration to be provided under these Terms and Conditions are GST inclusive. Unless a fee is expressly stated to be exclusive of GST, you agree to pay us the GST amount.

22. Credit references

You agree that Openmarkets may make such enquiries as it thinks fit of any person, including your employer, your bank or a credit agency relating to your creditworthiness.

23. No Advice

You acknowledge that Openmarkets does not provide financial product advice, nor does it accept responsibility for any financial product advice given to you by the Intermediary. You must not represent to any person that Openmarkets has given any financial product advice to you.

24. Information

You warrant that all information provided by you to the Intermediary or Openmarkets is, or will be when given, accurate, true and correct and further agree to immediately notify Openmarkets in writing upon becoming aware that such information is no longer accurate, true and correct. You agree that Openmarkets and the Intermediary may share such information, as well as your account details and information regarding your transactions in Traded Products with each other and with Openmarkets’ related bodies corporate on a confidential basis as Openmarkets considers appropriate. You also consent to Openmarkets and/or the Intermediary disclosing this information and your account details to any regulatory authority or otherwise in accordance with the Openmarkets Privacy Policy, and consent to Openmarkets and/or the Intermediary using such information and your account details for the purposes of monitoring compliance by you, the Intermediary and/or Openmarkets with their respective regulatory and contractual obligations, and resolving disputes. You may request access to the personal information that Openmarkets holds about you.

25. Electronic identity verification

25.1 Openmarkets may use the personal information collected about you for the purposes of  verifying your identity in accordance with our obligations under Anti-Money Laundering Laws. Conducting an electronic verification of your identity may involve Openmarkets disclosing your personal information which you provide to us to the Official Record Holder or issuer of your identity record (eg. drivers licence or passport) via third party providers which utilise the government managed Document Verification System (DVS).

25.2 Openmarkets will receive a report from the Official Record Holder or issuer of your identity record through the DVS. When conducting customer identification Openmarkets may disclose personal information about you to a credit reporting agency for the purposes of providing an assessment as to whether the personal information matches (in whole or part) personal information contained in a credit information file in the possession or control of the credit reporting agency. The credit reporting agency may provide Openmarkets with the assessment and the credit reporting agency may use the personal information about you including your name, residential addresses and date of birth contained in credit information files of other individuals, for the purpose of preparing the assessment. By agreeing to these Terms and Conditions, you consent to electronic identity verification and to Openmarkets providing your personal information to a credit reporting agency.

26. Complaints

26.1 You have a right to complain about any aspect of your dealings with Openmarkets, and to have that complaint dealt with in accordance with Openmarkets’ complaint resolution procedures. A summary of those procedures is set out below. However, if your complaint relates to services provided by the Intermediary, your complaint should be dealt with in accordance with the Intermediary’s complaint resolution procedures. If you have such a complaint please contact the Intermediary.

26.2 You have the right to have any complaint about the service you have received from OpenMarkets, or any other aspects of your dealings with Openmarkets, investigated and dealt with as quickly as possible in accordance with Openmarkets’ complaints resolution procedure.To assist Openmarkets to respond appropriately to complaints, you are asked to set out complaints in writing, addressed to the Compliance Manager. You should include as much detail about the circumstances of your complaint as possible, including the name(s) of any Openmarkets staff involved. If available, copies of any background documentation should also be provided.

26.3 Following receipt of your complaint, the Compliance Manager will acknowledge receipt of it in writing and provide an estimate of the time it will take to investigate the circumstances. The Compliance Manager will fully investigate your complaint and follow up if further information is required from you. The Compliance Manager will then prepare a detailed written response to you after consideration of all relevant documents and following interviews with the involved employees and their manager(s), if required. The written response will be mailed or delivered to you.

26.4 As Openmarkets is a member of the Australian Financial Complaints Authority (AFCA), Openmarkets will advise you if you continue to have a complaint that you have the option to pursue your complaint with AFCA. AFCA’s contact details are:

Australian Financial Complaints Authority

26.5 If you are not satisfied with the response to your complaint, you may wish to pursue the matter with the Securities Exchange. The Australian Securities and Investments Commission also has a free call Infoline on 1300 300 630 which you may use to make a complaint and obtain information about your rights.

27. Compensation arrangements

27.1 As Openmarkets is a Participant of one or more Securities Exchanges and a Clearing Participant of ASX Clear, you may be entitled to make a claim on a compensation fund being the National Guarantee Fund (NGF) in the circumstances specified under Part 7.5 of the Corporations Act and the Corporations Regulations 2001 (Cth). For more information on the circumstances in which you may make a claim on a compensation fund contact:

  • in relation to transactions on ASX and the NGF, you can contact ASX or the Securities Exchanges Guarantee Corporation Limited ABN 19 008 626 793; or 
  • in relation to transactions on another Securities Exchange, you can contact that Securities Exchange.

27.2 The Chi-X Operating Rules require the following disclosure to be given to clients of Openmarkets:

a. There are two different compensation arrangements that may provide protection for retail investors trading on Chi-X: NGF Arrangements or Division 3 Arrangements. This is because on 26 October 2020, Chi-X became a member of the SEGC, which operates the National Guarantee Fund (NGF).

b. When do the NGF Arrangements apply? From 26 October 2020, the National Guarantee Fund (NGF) may apply in the circumstances set out in Division 4 of Part 7.5 of the Corporations Act 2001 and Corporations Regulations 2001. Transitional arrangements apply and these are set out on the SEGC’s website at www.segc.com.au. For further information on the National Guarantee Fund and what it covers, please contact SEGC, see the SEGC website and refer to Division 4 of Part 7.5 of the Corporations Regulations 2001 (Cth).

c. When do the Division 3 Compensation Arrangements apply? Where a retail investor suffers a loss in respect of conduct, a transaction or insolvency that occurred before 26 October 2020, that loss may be covered by the Division 3 compensation arrangements. Section 11 of the Chi-X Operating Rules outlines the Division 3 compensation arrangements, including the cessation of the arrangements on 25 October 2027 and the requirement, while the arrangements are in place, to make a claim no later than six months after becoming aware of the loss to which the claim relates. Section 11 also outlines that the losses covered by Division 3 are those resulting from defalcation or fraudulent misuse of your money, property or authority by a Chi-X participant.

27.3 Openmarkets has professional indemnity insurance which Openmarkets considers is adequate having regard to:

a. the volume and types of business carried on by it; the number and types of its clients; the number of its representatives; and

b. any particular or potential claims that may arise pursuant to our participation in external dispute resolution schemes, including the AFCA scheme.

Openmarkets considers that these compensation arrangements satisfy the requirements of s 912B of the Corporations Act and associated regulations

28. Joint Holder

If you are a joint holder, these Terms and Conditions bind each person jointly and severally, and each person is authorised to issue instructions to your Intermediary and give receipts to Openmarkets in relation to any purchase or sale of Traded Products or other matters to which these Terms and Conditions relate.

29. Account for trust

You warrant that if you enter into this agreement with Openmarkets as a trustee, you have the authority to enter into these Terms and Conditions and any related agreement to these terms (including the Chess Sponsorship Agreement) in both your personal capacity and as a trustee.

30. Telephone recording

You agree and consent to:

a. the electronic recording by Openmarkets of the telephonic conversations between you and Openmarkets with or without an automatic tone warning device;

b. the use of recordings or transcripts from such recordings for any purpose which Openmarkets deems desirable, including their use as evidence by either party in any dispute or anticipated dispute between Openmarkets, the Intermediary or you; and

c. Openmarkets keeping the recording for as long as it sees fit.

31. Electronic correspondence

You hereby nominate your email address (as provided to Openmarkets or the Intermediary from time to time) for the purpose of receiving all communications and consent to receiving (and authorise Openmarkets to use your email address to send to you) any Disclosure Document Openmarkets is required to provide to you including any updates to these documents.

You agree that Openmarkets may:

a. provide to you a link to a Disclosure Document such that you are able to access the document electronically;

b. provide to you a Disclosure Document by means of an electronic portal or application service by which you are able to access the documents;

c. arrange for the Intermediary to provide to you electronically (as agent for Openmarkets) any of the Disclosure Documents by any means set out in this clause 31; You may opt out of a receiving a Disclosure document electronically by giving notice to the Intermediary within 7 days of agreeing to these Terms and Conditions and the Intermediary will arrange for you to receive a hard copy of the documents. You agree that you will retain a copy of each Disclosure Document provided to you by downloading or otherwise making a copy of the document.

32. Tax file number

Quotation of your Australian tax file number (TFN) is optional. Openmarkets is an Australian financial service licensee that is authorised by law to request your TFN. You are not required to provide your TFN.  If Openmarkets is unable to quote your tax file number or exemption to registries, they may be obliged to take tax at the highest marginal rate from any dividends, distributions, interest and payments to which you are entitled and you may wish to seek independent advice in this regard. By providing a TFN and signing the Application Form you appoint Openmarkets as your agent and request and authorise Openmarkets to:

a. provide your Tax File Number to all investment bodies with whom Openmarkets acts on your behalf;

b. apply your TFN to any investment or account which you may in future make or open with or through Openmarkets (and its related bodies corporate) to which your TFN may lawfully be applied; and you acknowledge that this authority will apply until such time as it is revoked in writing to Openmarkets.

33. Amendment

These Terms and Conditions may be amended by Openmarkets from time to time by notice to you. Where the variation is minor or its effect is in the opinion of Openmarkets not materially adverse to you, Openmarkets may post an update of these Terms and Conditions on its website or make it available to you in accordance with clause 31. For any other amendment, Openmarkets will give you 5 days notice, after which time the amendment will become effective and such notice may be given in accordance with clause 31.

34. Termination

Openmarkets may terminate this agreement with you and close your account by giving written notice to you and such notice may be communicated to the Intermediary. You may terminate this agreement and close your account by giving written notice to Openmarkets. The termination of this agreement does not affect any rights or obligations of the parties which may have accrued prior to the termination of this agreement.

35. Governing law

These Terms and Conditions are governed by the law in force in New South Wales and you and Openmarkets submit to the non-exclusive jurisdiction of the courts of New South Wales and courts which may hear appeals from those courts.

36. Interpretation

In this document (including the Schedules), unless the contrary intention appears:

  • ASIC means the Australian Securities and Investments Commission.
  • ASX means ASX Limited ABN 98 008 624 691.
  • ASX Clear means ASX Clear Pty Limited ABN 48 001 314 503.
  • ASX Clear Rules means the operating rules of ASX Clear as amended from time to time.
  • ASX Market Integrity Rules means the ASIC Market Integrity Rules (ASX Market) 2010 as amended from time to time.
  • Clearing Participant means a person admitted as a participant under the ASX Clear Rules.
  • Competition Market Integrity Rules means the ASIC Market Integrity Rules (Competition in Exchange Markets) 2011, as amended from time to time.
  • Confirmation has the meaning given to it in clause 14. 
  • Corporations Act means the Corporations Act 2001 (Cth) 
  • Crossing has the meaning given to it in the Market Integrity Rules.
  • Disclosure Documents includes any financial services disclosures under the Corporations Act, Exchange rules or other applicable law such as (without limitation) a Financial Services Guide, Confirmation, policy documents, Product Disclosure Statement, Chess Sponsorship Agreement, client agreement and these Terms and Conditions (including any part thereof). 
  • Error has the meaning given to it in the Exchange Rules and in relation to Chi-X, has the meaning given to “error trade” in the Chi-X Operating Rules, and has the meaning of any equivalent term in any other Exchange Rules including without limitation “error” or “trade error”.
  • Exchange Rules means the operating rules of each Securities Exchange and the Market Integrity Rules.
  • Intermediary means an AFSL holder or an authorised representative of the AFSL holder with whom you instruct to place an Order.
  • Market means the means the market operated by the Market Operator under the Market Integrity Rules.
  • Market Integrity Rules means any market integrity rules made by ASIC in accordance with Part 7.2A of the Corporations Act, as amended from time to time, that apply to a Securities Exchange, including, without limitation, the ASIC Market Integrity Rules, the Chi-X Market Integrity Rules and the Competition Market Integrity Rules.
  • NSX means National Stock Exchange of Australia Limited ABN 11 000 902 063.
  • Order means an order or instruction for the sale, purchase, issue or redemption of Traded Products to be executed or facilitated by Openmarkets.
  • Participant Sponsored Holding has the meaning given to it in the ASX Settlement Rules. Partly Paid Security means a financial product quoted on a Securities Exchange for which the holder may be liable to pay a call or instalment in accordance with the terms of issue and for which an amount remains unpaid, but does not include a Quoted Product issued by a no liability company.
  • Securities Exchange means ASX or Chi-X, NSX or SIM VSE and, without limitation, any other exchange on which Openmarkets transacts Orders, or the financial markets operated by them (as the context requires).
  • SIM VSE means SIM Venture Securities Exchange Limited (ABN 41 087 708 898).
  • Traded Products has the meaning given to Cash Market Products in the ASIC Market Integrity Rules (and includes an AQUA Product) and Equity Market Product in the Chi-X Market Integrity Rules and for other Securities Exchanges, means the cash equities products (excluding derivatives) admitted for quotation on the relevant market as described in the relevant Exchange Rules or Market Integrity Rules (as the context requires) for that Securities Exchange.
  • Trading Account means a trading account opened for you by Openmarkets through which you may buy or sell Traded Products.
  • Trading Participant has the meaning given to that term in the ASIC Market Integrity Rules and to Market Participant in the Chi-X, APX or NSX Market Integrity Rules.
  • Transaction has the meaning given to Cash Market Transaction in the ASIC Market Integrity Rules or Equity Market Transaction in the Chi-X Market Integrity Rules and for other Securities Exchanges, has the meaning given to transaction in cash equities products (excluding derivatives) admitted for quotation on the relevant market as described in the relevant Exchange Rules or Market Integrity Rules (as the context requires) for that Securities Exchange.
  • Warrant has the meaning given to it in the ASIC Market Integrity Rules.
  • You means the person or persons in whose name the account is opened with Openmarkets or named on the account opening or application form as the client. If that is more than one person, “you” means each of them separately and every two or more of them jointly. “You” includes your successors and assigns.

Words expressed in the singular include the plural and vice versa.

Unless the context otherwise requires, a reference to a document or agreement includes any variation or replacement of it and a reference to any legislation or legislative provision includes any statutory modification or re-enactment of, or legislative provision substituted for, and any subordinate legislation issued under, that legislation or legislative provision. Words used in this document (including in a Schedule) have the meanings given to them in the Exchange Rules, ASX Clear Rules or the ASX Settlement Rules. If you require a copy of these definitions, please contact the Intermediary.

You agree that in the event of any inconsistency between this document and any applicable laws, the Exchange Rules, ASX Clear Rules or ASX Settlement Rules, the latter will prevail to the extent of the inconsistency. You acknowledge that this document is not exhaustive and agree to be bound by other policies and procedures which concern the operations of your account with Openmarkets as notified to you from time to time.

Openmarkets Australia Ltd

  • ABN 38 090 472 012
  • AFSL No 246705

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