Securities Trading Terms & Conditions

Table of Contents


PART A: Overview & User Acceptance
1. Your acceptance 
2. About Us 
3. How to become a Member 
4. AML/CTF Obligations
5. Junior Accounts 


PART B: Securities Trading Service
6. Overview of Securities Trading Service 
7. Trade Instructions
8. Trust Account 
9. Limits to Our Responsibility
10. Payment
11. Transferring funds out of your Cash Balance 
12. Fees, charges, and costs
13. Corporate Actions and Resolutions 
14. Trading and Order Types
15. Advanced Orders
16. Settlement
17. Securities Transfers 
18. Termination of Securities Trading Service 


PART C: GENERAL TERMS
19. Using the YourPortfolio Services 
20. Termination 
21. Third Party Information
22. Supplementary Services 
23. Dealings with us
24. Disclosure of benefits
25. Intellectual Property
26. Privacy
27. Tax File Number
28. Prohibited Uses
29. Registration and Login
30. Disclaimer of Warranties and Limitation of Liability
31. Indemnity
32. Jurisdiction and Law 
33. Severability 
34. Third Party Beneficiary
35. Contacting Us
36. Telephone recording
37. Definitions and Interpretation


PART D - NOMINEE TERMS
38. Appointment
39. Sub-Custodians
40. Instructions 
41. Record keeping
42. Corporate Actions
43. General
44. Voting
45. Substantial holder notices
46. Fees 
47. Liability and indemnity
48. No Personal Advice
49. Encumbrances 
50. Breach reporting 
51. Termination
52. Confidentiality
53. Variation
54. Severance 
55. No waiver
56. Governing laws
57. Privacy Policy
58. Definitions and interpretation 

Securities Trading Terms and Conditions

These terms and conditions contain important information, including disclaimers and limitations of liability.

PART A: OVERVIEW AND USER ACCEPTANCE

1. Your acceptance

1.1 These are the terms and conditions (Terms) on which YP Securities Limited (YPS) ABN 41 647 627 889, AFSL No. 531729 and YP Operator Pty Ltd (YPO) (ABN 41 647 627 889, Authorised Rep No. 001297827) a Corporate Authorised Representative of YPS, (which may be referred to collectively as we, us, our) permit Members (referred to as you or your) to:


(i) access and use the public elements of our website www.YourPortfolio.com (Website);

(ii) access and use the Members elements of the Website;
(iii) make use of the YourPortfolio Platform by any means (including through the Website);
(iv) view or interact with any content, information, communications, advice, text, or other material provided by us through the Website or App (Content); 
(v) register for a YourPortfolio Account that will enable you to:


a. receive Securities trading services from YPO;
b. use the Trust Account (operated by YPS) for the purpose of settling Securities trades; and
c. appoint Openmarkets Nominees Pty Ltd (OMN or the Custodian) (ABN 38 090 472 012) (Authorised Rep No. 1267031), a Corporate Authorised Representative of Openmarkets Australia Limited (OMA or the Market Participant) (ABN 38 090 472 012) (AFSL No. 246705) to hold legal title to securities on your behalf
(collectively the Securities Trading Service); and


(vi) communicate with us
 

(collectively, the YourPortfolio Services).


1.2 GiftX Pty Ltd ABN 65 653 062 563 (GiftX) is a related body corporate of YPS and YPO and is the issuer of the Gift Cards that can be used to acquire a beneficial interest in Securities using our Website or App. The use of Gift Cards is subject to the terms and conditions issued by GiftX.


1.3  You agree to be bound by these Terms by using, browsing, or accessing any part of the YourPortfolio Services. If you do not accept these Terms, you must not use the YourPortfolio Services.


1.4 By clicking the ‘Sign Up’ button on our Website or App or by otherwise signing up to use the YourPortfolio Platform, you acknowledge and agree that you have:


(i) read, understood and agreed to be bound by these Terms;
(ii) read, understood, and agreed to be bound by the Nominee Terms set out in Part D; and
(iii) received, read, and understood the YPO Financial Services Guide, which can be accessed at https://www.yourportfolio.com/.


1.5 These Terms constitute a legally binding agreement between you, YPO, YPS and OMN.


1.6 Where a YourPortfolio Account is held by more than one person, you acknowledge that all account holders and beneficial owners of the holding have read, understood, and agreed to be bound by these Terms and the other documents listed in clause 1.4.
 

1.7 You acknowledge that we reserve the right to decline your application to open a YourPortfolio Account or use the YourPortfolio Platform, at our absolute discretion.
 

1.8 We may from time-to-time review and update these Terms, including to take account of new laws, regulations, products, or technology. Your use of the YourPortfolio Services will be governed by the most recent Terms posted on the Website. By continuing to use any of the YourPortfolio Services, you agree to be bound by the most recent Terms which will be made available on the Website. It is your responsibility to check the Website regularly for updated versions of the Terms.
 

1.9 We have discretions under these Terms which can affect your dealings with us. You do not have any power to direct how we exercise our discretions. When exercising our discretions, we will comply with our legal obligations. We will have regard to our policies and to managing all risks (including financial, credit and legal risks) for ourselves and all our members, our obligations to our counterparties, market conditions and our reputation. 
 

1.10 Capitalised terms used throughout these Terms are defined in clause 37.1.
 

1.11 We strongly encourage you to regularly review our Website at https://www.yourportfolio.com/ for any updates or changes to these Terms or any other documents referred to in these Terms including, but not limited to, the YPO Financial Services Guide, Privacy Policy, and Nominee Terms (refer to Part D).

2. About Us

2.1 YPS holds an Australian financial services licence (AFSL) numbered 531 729.

2.2 YPO is the operator of a securities trading service that provides members the ability to buy and sell securities. YPO is a related body corporate of YPS and has been appointed as a Corporate Authorised Representative (AR No: under the YPS AFSL.1267031).

2.3 OMA has been appointed by YPO as the Market Participant to execute Trades in Securities in the name of OMN in accordance with instructions you have provided to YPO. OMA is a Market Participant of ASX, Cboe and NSX, and an ASX Clear and Settlement Participant. OMN is a Corporate Authorised Representative of OMA.

2.4 Under the Nominee Terms set out in Part D, you agree to appoint OMN to hold on bare trust all Securities acquired by you through the YourPortfolio Platform and all cash deposited by you in your YourPortfolio Account as well as any Securities transferred onto the YourPortfolio Platform, in accordance with these Terms.

2.5 Your Cash Balance, which comprises any cash transferred or deposited in connection with your YourPortfolio Account, will be separately held by YPS in the Trust Account.

2.6 Please refer to Part D for more information about the nominee arrangements between you and OMN.

3. How to become a Member

3.1 You may apply to become a Member by completing the online Application Form and providing all required information. We may accept or reject your application in our sole discretion.


3.2 When accepting an application, we may impose conditions on that acceptance. Such conditions may include portfolio limits, trade size limits, flow limits and other restrictions, limitations, or exclusions.


3.3 If your application to become a Member is accepted, you grant us a limited power of attorney to undertake and carry out certain actions on your behalf as detailed in these Terms and/or the Application Form.


3.4 If your application to become a Member is accepted and you elect to subscribe to one of our options for which a Subscription Fee is payable, you must pay your Subscription Fee:

 

(i) monthly in advance, on the last calendar day of the preceding month;
(ii) by providing us with credit or debit card details or making payment in advance by direct debit from your Cash Balance; and
(iii) in accordance with any other requirements contained in the Application Form.

 

3.5 At any time we may vary the Subscription Fee and the services provided in connection with the Subscription Fee from time to time by giving you 30 days’ prior written notice via the YourPortfolio Platform.

3.6 If you have not paid your Subscription Fee 10 Business Days after the due date, we will treat such failure as a material breach of these Terms and we may revoke your access to the services for which the Subscription Fee is payable.

3.7  You may be charged a fee if there are insufficient funds available to make payment using the relevant payment method or a transaction dispute is lodged with another institution.

3.8 If you terminate your Membership, you will not be entitled to any refund of your Subscription Fee (if any) paid for that month. We do not offer refunds on any fees including Subscription Fees charged to YourPortfolio Account, including partially unused periods. Your obligation to pay fees (including any Subscription Fees) continues to the end of your Membership period during which you cancel your Membership. 

3.9 You must be an Australian tax resident only to be able to become a Member.  You will need to declare whether you are tax resident of a country other than Australia when completing the Application Form. If you declare that you are a tax resident of a country other than Australia, we will not accept your application. 


4. AML/CTF Obligations

You acknowledge and agree:
 

4.1 In order for us to meet our obligations under the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth) and associated Rules (AML/CTF obligations), we are required to verify the identity of Members as well as certain information about Members’ beneficial owners (if applicable).


4.2 We may at any time request further information from you to verify your identity and/or the source of monies credited or to be credited to your Cash Balance and you agree to promptly meet our request. If you do not provide the information to us as requested, or there is a delay in you providing this information to us, we may not be able to open your YourPortfolio Account or may suspend your access to any of the YourPortfolio Services.


4.3 We may disclose your Personal Information to a Credit Reporting Body to verify your identity and obtain an assessment of whether the information you have provided to us matches the information provided by the Credit Reporting Body.
 

4.4 We are not liable for any loss you incur because of any action we take which either delays a YourPortfolio Account being opened or results in an Application being declined, when these actions are necessary for us to comply with our AML/CTF obligations.
 

4.5 We may require further information from you from time to time in order to meet our AML/CTF obligations and you agree to provide us with whatever additional information is reasonably required in order for us to meet our AML/CTF obligations. 
 

4.6 We may use the Document Verification Service to verify your government issued identification and confirm your identity.
 

4.7 You explicitly consent for us to share your Personal Information with other parties in limited circumstances. For example, we may share your Personal Information:


(i) with our related bodies corporate; and
(ii) with external Service Providers that perform services on our behalf.

 

For example, we will engage a third-party Service Provider through which we will access independent and reliable data sources to conduct identity verification and customer due diligence procedures. In conducting electronic verification, YPO will always comply with Division 5A of Part 2 of the AML/CTF Act.

5. Junior Accounts

5.1 Where we accept an application from a Member who is under 18 years of age, we may require the Member to nominate a person who is over 18 years of age to act as the Member's Trusted Adult (in addition to any other conditions imposed under clause 3.2).  Where a person agrees to be a Trusted Adult, each obligation expressed to be imposed on the Member under these Terms will be imposed, jointly and severally on the Member and the Trusted Adult.

 

PART B: SECURITIES TRADING SERVICE

6. Overview of Securities Trading Service
 

6.1  If you have a YourPortfolio Account you will be able to give instructions to us through the YourPortfolio Platform to request for:
 

(i) a particular quantity or amount of a particular Security to be acquired by the Custodian as bare trustee on your behalf and held (ii) as part of your Portfolio using funds held in your Cash Balance; 
a particular quantity or amount of a particular Security in your Portfolio to be sold, and for the net proceeds of sale to be remitted to your Cash Balance; and
(iii) in some circumstances you may be able to request the Custodian to vote on a Resolution or respond to a Corporate Action with respect to Securities which form part of your Portfolio in accordance with directions you have provided.

 

6.2 By registering for a YourPortfolio Account, you authorise YPO to act as your agent to process your instructions and arrange for transactions to be executed with the Market Participant on your behalf in the name of the Custodian (Trades).
 

6.3 We will establish an omnibus account with the Custodian and the Custodian will hold an account with the Market Participant. The Custodian will hold the legal title to Securities on trust for you as bare trustee and it will hold the Securities which you beneficially own (which comprise your Portfolio) together with the Securities beneficially owned by other Members. 
 

6.4 You acknowledge and agree that, in addition to being bound by these terms, when you use the Securities Trading Service you will be bound by the Nominee Terms set out in Part D. 


6.5 The effect of you agreeing to the Nominee Terms is that the legal owner of any Securities you purchase via the YourPortfolio Platform will be OMN and you will be the beneficial owner of those Securities. Importantly, this means that:
 

(i) your name will not appear on an entity’s members register (OMN will appear on the register instead);
(ii) your Securities are not held by you separately but by OMN in the Omnibus Account; and
(iii) as your name does not appear on an entity’s share registry, you will not receive information directly from that entity (for example, you will not receive a ‘Notice of Annual General Meeting’ from a company you beneficially own shares in).

7. Trade Instructions

7.1 YPO will act as agent solely within the parameters of instructions it receives from you.


7.2 We will determine the Securities which can be traded through the YourPortfolio Platform in our discretion and may change them from time to time. You will be notified of changes to the list of supported Securities through the Website or App.


7.3 If you wish to place a Trade order on the Website or App, you authorise YPO to instruct the Market Participant to place the order in the name of the Custodian on your behalf.


7.4 All orders placed via our Website or App are subject to, and must be made in accordance with, these Terms.


7.5 When you instruct YPO to place a Trade order, and once the Market Participant has notified YPO that it has executed that order, YPO will provide a notification to you via your YourPortfolio Account to confirm that your order has been executed (an Order Confirmation). 
 

7.6 You agree that Order Confirmations that are made available in your YourPortfolio Account through the YourPortfolio Platform are deemed to be received by you at the time they are made available.
 

7.7 You acknowledge that as soon as you become aware of an error or omission in an Order Confirmation, you are responsible for taking action to mitigate any loss that you may suffer arising from or in connection with that error or omission.
 

7.8 If there are any errors or omissions in an Order Confirmation, we may issue you a further Order Confirmation. This further Order Confirmation shall supersede the previous Order Confirmation in all respects.
 

7.9 YPO may assume the authenticity of any instructions given or purportedly given by you or any person claiming to be your representative. YPO is not obliged to enquire into any authenticity of instructions received and you authorise YPO to act upon any instructions it reasonably believes to be authentic.
 

7.10 YPO always reserves the right to decline to accept your instructions without explanation or prior notice for reasons including where:

(i) your instructions are ambiguous, incomplete or unclear;
(ii) your instructions would result in a breach of the law;
(iii) it is not reasonably practicable for the Market Participant to place an order on the relevant Exchange;
(iv) the Security may be too thinly traded; or
(v) the Security is subject to a trading halt.

 

7.11 YPO will inform you of any instructions declined in accordance with clause 7.10 as soon as reasonably practicable.


7.12 YPO will use its best endeavours to pass on accepted instructions, but YPO does not guarantee that your instructions will be wholly or partially executed or will be executed by a certain time due to reasons including if:
 

(i) your instructions are contrary to the terms applicable to your YourPortfolio Account;
(ii) the Trade is unexecuted due to any act or omission of the Market Participant or the Exchange;
(iii) your instructions are ambiguous or incomplete;
(iv) your instructions would result in a breach of the law;
(v) your Cash Balance is insufficient to settle the Trade;
(vi) your order may need to be manually vetted; 
(vii) the Security may be too thinly traded; or
(viii) the Security may be subject to a trading halt.


7.12 If YPO receives notice from the Market Participant that a Trade has not been executed, YPO will pass this notice on to you as soon as reasonably practicable.


7.13 You are responsible for verifying the accuracy of all Trade details prior to submitting instructions to us.
 

7.14 We cannot cancel or reverse any Trades once they have been submitted to the Market Participant. Trades are subject to confirmation by the relevant Exchange and may not be reflected in your YourPortfolio Account until this process is complete.
 

7.15 You must not instruct us to submit an order which would breach, or cause us or the Market Participant to breach Applicable Law, including in relation to:


(i) any insider trading, market manipulation, false or misleading trading, or market rigging;
(ii) short selling; or
(iii) creating a disorderly market or otherwise prejudicing the integrity or efficiency of the market.

8. Trust Account

8.1 YPS holds your Cash Balance on your behalf in a trust account established by YPS with an ADI (Trust Account). YPS holds the Trust Account in its name as bare trustee for you.  


8.2  You represent that at all times during your dealings with us that you will be in a position to meet all your commitments and obligations arising from those dealings.


8.3 You represent that if you place a buy order, you have sufficient funds in your Cash Balance to pay for the Securities you have instructed to be purchased on your behalf.


8.4 You agree that all amounts, Securities and other property or holdings held in your YourPortfolio Account are subject to a lien in favour of YPS for the payment of all amounts owing by you to YPS or its related bodies corporate, any debit balances, charge backs or other obligations arising in connection with your YourPortfolio Account. You grant YPS your express legal authority to use, liquidate and/or transfer any and all amounts, Securities and other property or holdings in your YourPortfolio Account as needed to satisfy any indebtedness arising in connection with your YourPortfolio Account, to the extent permitted by law.
 

8.5 YPS is not entitled to withdraw any amounts from your Cash Balance, except in accordance with a direction from you, including any standing directions you have given under these Terms. YPS represents that, as any amounts held by YPS in the Trust Account are held on bare trust for Members, they would not be available to creditors of YPS, in the event of insolvency of YPS or otherwise.
 

8.6 You may not use the Trust Account for any purpose other than the Securities Trading Service in accordance with these Terms. Amounts can be deposited into the Trust Account by electronic transfer or credit/debit card.
 

8.7 You direct us to deduct from your Cash Balance any amounts payable in connection with your Trades (including settlement amounts, fees, interest and any other costs or charges) and any fees payable to us or any Service Provider under these Terms.
 

8.8 YPS may retain interest earned on your Cash Balance that is payable in respect of the Trust Account. If YPS passes on any portion of interest earned on your Cash Balance, YPS may vary any amount passed on from time to time in its sole discretion.
 

8.9 We may suspend your access to your Cash Balance or the Securities Trading Service where:
 

(i) we consider it reasonably necessary to do so to prevent a breach of these Terms;
(ii) such action is required by our policies and procedures in relation to meeting our AML/CTF obligations; or
(iii) we are required to do so by law.

9. Limits to our Responsibility

9.1 You acknowledge and agree that:
 

(i) we do not recommend or endorse any investments in or available through the YourPortfolio Platform, and we assume no responsibility or liability in relation to the quality of such investments; 
(ii) you authorise the Market Participant (as applicable) to provide information about your Trades to us; 
(iii) it is your responsibility to assess and research each Trade and determine its suitability for your purposes; and
(iv) if an order is filled prior to the Market Participant receiving and processing a cancellation or amendment from YPO on your behalf, you will accept the Trade on the original terms.


9.2 You acknowledge that we are not authorised to, and do not through the YourPortfolio Services, provide legal, tax, accounting, or personal financial product advice (within the meaning of the Corporations Act).
 

9.3 All information provided on the YourPortfolio Services is, unless otherwise indicated, factual information and does not involve any recommendation or statement of opinion by us or any third party. Such information does not consider your objectives, financial situation or needs and you should consider obtaining professional financial advice before making any investment decisions. 
 

9.4 References in the YourPortfolio Platform to the performance of your Portfolio are to the past performance of that Portfolio. Past performance should not be taken as an indication of future performance.
 

9.5 To the greatest extent permissible by law, you acknowledge and agree that we are not responsible (whether in contract, tort or otherwise) for any loss or damage caused or suffered by you to the extent that the loss or damage results from:
 

(i) any defect in our computer systems, or any delay, fault, failure in or loss of access to the YourPortfolio Services;
(ii) telecommunications failure, delay, or interruption of or defective network or internet connections or services by a third party, including any defect in our computer systems or the computer systems of any Exchange or Service Provider;
(iii) your incorrect operation of the YourPortfolio Platform;
(iv) inaccuracy, error or omission in any material, data or information provided by you or any other third party through the YourPortfolio Platform;
(v) actions of third parties in respect of the Securities Trading Service including any Exchange or Service Providers; or
(vi) any delay, interruption, omission, failure, error or fault in the execution of your instructions other than as a direct result of our fraud, wilful default or negligence.

10. Payment

10.1 In order to buy Securities through the YourPortfolio Platform, subject to clause 10.2, you will need to have a sufficient Cash Balance. You may deposit cash into the Trust Account by several methods:
 

(i) electronic funds transfer in the form of PayID transfer and bank transfer. PayID transfers can take up to 1 Business Day to be processed and for the cash to appear in your Cash Balance. Bank transfers can take up to 3 Business Days to be processed and reflected in your Cash Balance; or 
(ii) credit or debit card.

 

10.2 If you place a successful order to purchase Securities using the funds you redeem from a Gift Card, GiftX will purchase the Securities and then transfer the Securities to the Custodian to hold in your Portfolio.

11. Transferring funds out of your cash balance

11.1 You may only request a transfer of funds from your Cash Balance to a bank account that is in the name in which your YourPortfolio Account is held. You can instruct us to link your bank account to your YourPortfolio Account at any time but as a minimum you will be required to link your bank account before we process a withdrawal request. You may not request a transfer of funds from your Cash Balance to a third party’s bank account.


11.2 We will use reasonable endeavours to process requests for funds transfers from your Cash Balance within 3 Business Days (T+3). The time it takes for the requested amount to enter your bank account may be longer, depending on your bank.
 

11.3 We will establish funds transfer request processes and procedures and may change these from time to time. Information about these processes and procedures will be available through our Website and App.
 

11.4 To reduce the risk of fraud occurring, we may impose a daily withdrawal limit as published from time to time on the Website. To request an increase to this withdrawal limit you may be required to provide further documentation and identification for verification purposes.
 

11.5 If all or part of your YourPortfolio Account has been funded through the redemption of one or more Gift Cards, we reserve the right to restrict the amount which you can withdraw from your Cash Balance to an external bank account for up to 180 days from the date the Gift Card was purchased.

12. Fees, changes, and costs

12.1 You agree to pay our normal fees, charges and costs associated with your Trades, including without limitation, Brokerage, transfer fees, regulatory fees and administration fees, and to reimburse us for any extraneous costs such as GST (Fees). Full details of our current Fees can be accessed in our Fee Schedule on our Website.


12.2  Unless expressly stated otherwise, all Fees, charges, and other consideration to be provided under these Terms is expressed on a GST-inclusive basis. Where a fee is expressly stated to be exclusive of GST, you agree to pay us the GST amount.
 

12.3 You agree to indemnify us and keep us indemnified against any applicable penalties and interest in relation to GST that is paid or payable by us in providing taxable services to you, except to the extent that the penalties or interest arise from or are caused by our fault.

13. Corporate Actions and resolutions

13.1 We will use reasonable endeavours to advise you of any Corporate Actions and Resolutions of any entity which may be relevant to your Portfolio. 


13.2 If you wish to take action with regard to a Corporate Action then you may communicate your instructions to us and we will use reasonable endeavours pass on your instructions to the Market Participant for actioning subject to the terms and conditions. However, you acknowledge that we reserve the right not to act in relation to any Corporate Action where it is not reasonably practicable to do so. 
 

13.3 You authorise us to take other actions, on your behalf, as we consider reasonably necessary to prevent any settlement failures or other irregularities in connection with a Corporate Action.
 

13.4 If you wish to direct the Custodian to exercise the voting rights attached to Securities which form part of your Portfolio, you may communicate how you wish those votes to be cast to us and we will pass on your voting directions for actioning subject to the Nominee Terms.
 

13.5 We will not be liable to you for any matter in relation to any Corporate Action or Resolution and we are not able to provide you with any advice as to how to respond to a Corporate Action or direct the Custodian how to vote on any Resolution.  

 

14. Trading and Order Types

14.1 For Australian Securities trading, our Market Participant handles and executes orders in accordance with:
 

(i) its terms and conditions and Best Execution Policy, which can be accessed at www.openmarkets.com.au;
(ii) the arrangements between it and us; and
(iii) the ASIC Market Integrity Rules and operating rules of any Australian Exchange.

 

14.2 You should be aware that system response, execution price, speed, liquidity, market data and account access times are affected by many factors, including market volatility, size and type of order, market conditions, system performance, and other factors.

 

14.3 Not all order types may be available across all markets, and some order types may not be available or offered on some exchanges.
 

14.4 You agree to familiarise yourself with the available order types before commencing to trade. These order types include limit orders and market orders. 


14.5 A limit order is an order to buy or sell a specified number of Securities at a specified price or better. Limit orders can be cancelled provided the order has not already been executed. All limit orders placed for Australian listed Securities are valid for the trading day you place the order via the YourPortfolio Platform.


14.6 A limit order may not trade immediately because: 
 

(i) it is received outside the Trading Day; 
(ii) there may be other orders ahead of you at the same or better price than yours. The market processes orders based on “price-time priority” (those at a better price first; and, if at the same price, then by the time it was submitted); 
(iii) there is no demand at your nominated price at that point in time; or
(iv) we or the Market Participant may have to perform additional checks on your order before it is sent to market.

 

14.7 A market order is an order to buy or sell Securities at the prevailing market price. Market orders are placed ‘at market’, meaning that:
 

(i) If the market order is a buy order, the order will be placed at the price set by the lowest seller in the market at the time the order is placed. If for any reason your order does not trade immediately, the price of your order will be continually updated (increased) in increments until the order trades, in full.
(ii) In some circumstances your buy order may only partially trade or may not trade at all (e.g., where there are no sellers in the market or where an order breaches, or may cause us or the Market Participant to breach Applicable Law or the Market Participant’s Best Execution Policy; and
(iii) If the market order is a sell order, the order will be placed at the price set by the highest buyer in the market at the time the order is placed. If for any reason your order does not trade immediately, the price of your order will be continually updated (decreased) in increments until the order trades, in full.

 

14.8 In some circumstances your sell order may only partially trade or may not trade at all (e.g., where there are no sellers in the market or where an order breaches or may cause us or the Market Participant to breach Applicable Law or the Market Participant’s Best Execution Policy).


14.9 All market orders placed for Australian listed Securities are valid for the Trading Day on which you place the order via the YourPortfolio Platform. All unfilled orders will therefore need to reprocess the following Trading Day.  However, market orders generally cannot be amended or cancelled online during the Trading Day on which they are placed, because they are generally fulfilled quickly. 
 

14.10 Buy and sell orders can be placed for all available Exchange listed Securities (including on ASX and Cboe Australia) available on the YourPortfolio Platform.


14.11 Each buy order is subject to a maximum order limit of AUD$100,000, plus any applicable Brokerage fees for Australian listed Securities.


14.12 Each buy order for Australian listed Securities is subject to a minimum order limit of AUD$50, including any applicable Brokerage or fees.


14.13 Short selling orders are not accepted via the YourPortfolio Platform. You represent and warrant that any sell order placed on the YourPortfolio Platform is not associated or connected with any short sale or borrow of Securities.

15. Advanced Orders

15.1 IMPORTANT - The placement of contingent and/or conditional orders by you, such as "at limit" orders, will not necessarily limit your losses, nor may they be filled as intended by you as market conditions or technological issues (including the unavailability of the conditional or contingent function because of technology failure) may make it impossible to execute such orders.
 

15.2 Neither we nor the Market Participant guarantee that any contingent or conditional order placed by you will be executed as you intend, or at all, or that the conditional or contingent order technology will always be available to you.
 

15.3 Neither we nor the Market Participant accept any responsibility for losses because of the unavailability of the conditional or contingent order technology, or losses because of any conditional or contingent order placed by you that does not trade or fill as intended by your instruction.
 

15.4 Once a condition is triggered, your order may be immediately filled, possibly at a price unfavourable to your original condition, and you agree it is not possible to cancel the executed order, regardless of the subsequent price action.

16. Settlement

16.1 When you place an order via the YourPortfolio Platform, we will advise you in your Order Confirmation of the purchase consideration plus any applicable Fees (Purchase Settlement Amount) and settlement date.
 

16.2 When you place a buy order via the YourPortfolio Platform, and your order is accepted by our Market Participant, an amount equal to the value of your order will be reserved from your Cash Balance. Once the order has transacted, the amount reserved will change to an amount equal to the Purchase Settlement Amount up until the time of settlement. When your order settles, we will debit the Purchase Settlement Amount from your Cash Balance and credit the number of Securities the subject of the order to your Portfolio.
 

16.3 When you place a sell order via the YourPortfolio Platform, and your order is accepted by our Market Participant, your Portfolio will show as reserved the number of Securities you are seeking to sell. Once the order has transacted, the value of the order will show in your Cash Balance as an unsettled amount equal to the sale proceeds less any applicable Fees (Sale Settlement Amount) up until the time of settlement. When your order settles, we will credit the Sale Settlement Amount to your Cash Balance and debit the number of Securities the subject of the order from your Portfolio.
 

16.4 You agree that if your buy trade is not settled in your Portfolio for any reason that is not attributable to us, a fail fee will be deducted from your Cash Balance for every day your buy trade is not settled to cover our reasonable costs and expenses.
 

16.5 You agree that if your sell trade is not settled in your Portfolio for any reason that is not attributable to us, a fail fee will be deducted from your Cash Balance for every day your sell trade is not settled to cover our reasonable costs and expenses.
 

16.6 If an order does not settle in your Portfolio, you authorise us, after a demand, to buy back or sell on your behalf any Securities that are the subject of the failed Trade. You also agree to indemnify us against all costs, expenses and losses incurred resulting from the failure of the relevant Trade to settle in your Portfolio due to reasons that are not attributable to us.

17. Securities Transfers
17.1 If you already hold Securities sponsored with another broker and would like to transfer all or some of your Securities into your Portfolio (to be held in the name of the Custodian on your behalf as bare trustee), you will need to complete the YourPortfolio Off-Market Transfer Form. We will not charge you a fee to transfer your broker sponsored Securities into your Portfolio.  You should check whether any fees are payable to the other broker.


17.2 If you hold issuer sponsored Securities on a Shareholder Reference Number (SRN), you can transfer them into your Portfolio (to be held in the name of the Custodian on your behalf as bare trustee) by completing the YourPortfolio issuer sponsored Transfer Form. We will not charge you a fee to transfer your issuer sponsored Securities into your Portfolio.


17.3 If you wish to transfer Securities held in your Portfolio account into an account with another broker, you will need to request an Off-Market Transfer Form from the other broker.


17.4 Transferring Securities out of your Portfolio may incur transfer fees. Please see the YourPortfolio Fee Schedule on our Website for more information.


17.5 If you wish to transfer Securities from your Portfolio to another YourPortfolio Account holder or another entity (person, company, trust, etc.) external to the YourPortfolio Services, you will need to complete the YourPortfolio Off-Market Transfer Form. Off-market transfers incur a fee, which will be passed on to you. Please see the YourPortfolio Fee Schedule on our Website for further information.

 

18. Termination of Securities Trading Service
18.1 The Securities Trading Service will terminate on the earlier of:
 

(i) termination of your YourPortfolio Account;
or
(ii) you ceasing to be a Member in accordance with these Terms.

PART C: GENERAL TERMS

19. Using the YourPortfolio Services
19.1 You agree to use the YourPortfolio Services in good faith in accordance with these Terms and Applicable Laws.
 

19.2 You will comply with any of our policies, procedures, operating rules and directions from time to time in relation to the operation of the YourPortfolio Services, your access to the YourPortfolio Services and the manner of performance of your obligations under these Terms.
 

19.3 You are responsible for all dealings through the Securities Trading Service, including any fraudulent, illegal or unauthorised dealings, which are attributable to your conduct. You release and discharge us from any liability in respect of such dealings.
 

20. Termination 
20.1 You or we may cancel your Membership and terminate these Terms immediately by giving the other party written notice if that party has materially breached these Terms.

20.2 Upon cancellation of your Membership and termination of these Terms, you will no longer have access to the YourPortfolio Services, other than those portions of the Website which are publicly available to all users. Any such use of the YourPortfolio Services by you will continue to be subject to these Terms.


20.3 On termination of your Membership, we will close your YourPortfolio Account and:
 

(i) transfer an amount corresponding to your Cash Balance at the date of termination to either a bank account nominated by you or, where required, to a bank account nominated by us or one of our Service Providers, less any outstanding Fees; and/or
(ii) sell any Securities held in your Portfolio, and transfer any cash proceeds to either a bank account nominated by you or, where required, to a bank account nominated by us or one of our Service Providers, less any outstanding Fees;

 

unless the value of your Cash Balance or the Securities in your Portfolio at the time you make the request is less than $10 (and you agree to forfeit any such amount).


20.4 If we do not receive instructions from you in accordance with clause 20.3 within 10 days of termination of these arrangements, we may at any time thereafter sell any Securities that the Custodian holds on your behalf. If you have not nominated a bank account to us and we are unable to transfer any cash proceeds from the sale to you, less any outstanding Fees, any monies held by us will be held in accordance with Applicable Laws relating to unclaimed monies.

20.5 You acknowledge and agree that where Securities are sold on your behalf under this clause, you may suffer a shortfall between the amount you invested and the amount you get back after the sale. We are not responsible for any such shortfall, and such shortfall shall be borne by you in its entirety.


20.6 A ‘transfer fee’ may apply where we transfer cash from your Cash Balance or sell Securities from your Portfolio on your behalf in accordance with this clause.


20.7 Despite any other provision in these Terms, this clause 20 and clauses 23, 24, 25, 28, 29, 30, 31, 32 and 33 survive the expiry or termination of these Terms.

21. Third Party Information
21.1 The YourPortfolio Services incorporate information supplied by another Member or third party and incorporated into the Website or App, including:


i. current price and historical price information in relation to Securities provided by an Exchange or any other party; and
ii. research and analysis about Securities provided by third parties (Third-Party Information). 

 

21.2  We are not responsible for the Third-Party Information and make no representation as to its accuracy, reliability, timeliness, or appropriateness. You acknowledge that current price information for Securities may be delayed by up to 24 hours or longer in extraordinary circumstances.


21.3  Any recommendations or statements of opinion contained in the Third-Party Information are those of the relevant third party and are not adopted by or attributable to us.  We take no responsibility for any such recommendations or statements of opinion.
 

21.4 Information or data on the YourPortfolio Platform, such as market information or trading data, may be provided by a third-party Service Provider.  For example, market data is provided by ASX and Cboe for Australian listed Securities.
 

21.5 You must not make any Third-Party Information available to any other person without our express written consent. This includes downloading, copying, reproducing, adapting, selling, or distributing any Third-Party Information.
 

22. Supplementary Services
22.1 From time to time we may offer additional services with respect to Securities (Supplementary Services).

22.2 In order to access Supplementary Services, you must agree to be bound by the additional terms and conditions which govern those Supplementary Services (Supplementary Terms and Conditions), which we will make available through the Website and App. 
 

22.3 Your use of the Supplementary Services will be governed by these terms and the applicable Supplementary Terms and Conditions.
 

23. Dealings with Us
23.1 All dealings between you and us are subject to, and you agree to comply with all Applicable Laws:
the customs and usages of any Exchange, and any applicable directions, decisions and requirements of any Exchange; and
any rules, requirements, guidelines or policies of our Market Participant and any other relevant Service Providers.

 

24. Disclosure of benefits
24.1 We may provide benefits to third parties in connection with the YourPortfolio Services, including distributors (such as accountants and other professional service providers) who refer Members to us.


25. Intellectual Property
25.1 All intellectual property rights (including copyright and patents) in the YourPortfolio Services and all components of them are owned or licensed by us unless otherwise indicated. You must not copy, modify, or transmit any part of the YourPortfolio Services or any Content except as permitted in these Terms.


25.2 The YourPortfolio Services contain trademarks, logos, service names and trade names of YourPortfolio or third parties that may be registered or otherwise protected by law. These include the YourPortfolio.com logo. You are not permitted to use any trademarks, logos, service names or trade names appearing on the YourPortfolio Services.


25.3 We grant you a non-exclusive and non-transferable licence to use the Website and, if you are a Member and have registered for a YourPortfolio Account, the Securities Trading Service, for your own personal use. You may not download (other than page caching) or modify the Website, App, YourPortfolio Platform or the Securities Trading Service or any portion them.

25.4 Subject to certain restrictions and limits outlined in this clause and clause 28, the Website may allow you to upload, post, link to, store, communicate, send, or transmit Content (Your Content) on the Website or App.
 

25.5 You grant to us a non-exclusive, royalty-free, perpetual, irrevocable and fully sub-licensable right to use, modify, reproduce, adapt, communicate, display, perform and distribute Your Content in relation to and only for the purpose of our operation of the Website or App.


25.6 You represent and warrant that Your Content does not infringe any third party intellectual property rights and that you own or otherwise control all of the rights to the content or that you have obtained all necessary authorisations and consents to post, link to, store or communicate Your Content and to grant us the rights in clause 25.5, that Your Content is accurate, that the use of Your Content does not violate these Terms and will not cause any loss or injury to any person. You agree to be solely responsible for any of Your Content that you post to the Website or App.


25.7 We have the right, but not the obligation, to monitor any Content (including Your Content) made available on the Website or App. We reserve the right, in our absolute discretion, to block, modify or remove any Content (including Your Content) without notice, and will not be liable in any way for possible consequences of such actions.


25.8 If you have a complaint regarding any Content, our sole obligation will be to review any written complaint notified to us and, if we see fit, in our sole discretion, to modify or remove the Content.


26. Privacy
26.1 Any Personal Information you submit to our Website or App is subject to, and will be handled in accordance with, our Privacy Policy. The Privacy Policy forms part of these Terms and is set out at www.yourportfoliocom/privacy-policy. You agree that, by using the YourPortfolio Services or communicating with us, you have read the Privacy Policy, understood its contents and consent to its requirements. 


27. Tax File Number
27.1 By law, you are not required to tell us your Tax File Number, Australian Business Number or exemption code (if you have one) (Taxpayer Information). However, if you do not provide these details to us, we may be obligated by law to deduct and withhold amounts from payments otherwise owing to you at the highest marginal tax rate and pay those amounts to the relevant government agency.
 

27.2 We reserve the right to restrict your access to YourPortfolio Services and/or refuse your application if you have not provided us with your Taxpayer Information.

28. Prohibited Uses
28.1 In using the YourPortfolio Services, you must not engage or attempt to engage in any activities that:
 

(i) violate any applicable local, state, federal or international law including, without limitation the Spam Act 2003 (Cth), Copyright Act 1968 (Cth), principles of law or equity established by decisions of courts and statutes, regulations or by-laws of the Commonwealth of Australia, or any State or Territory of the Commonwealth of Australia or a government agency;
(ii) result in the placement, posting, uploading of, linking to, sending, storing or otherwise communicating or distributing in any way content that is (or is likely to be considered) inappropriate, defamatory, abusive, profane, infringing, obscene, indecent, obscene, or unlawful material or information;
(iii) violate the rights of any third party (including, without limitation abusing, stalking, threatening or otherwise, infringement of copyright, trademark, or other intellectual property right, misappropriation of trade secrets, Confidential Information, electronic fraud, invasion of privacy, pornography, obscenity or libel);
(iv) interfere with or disrupt any other third parties (including other users of the YourPortfolio Services), equipment, functions, features or the YourPortfolio Services;
(v) introduce or allow the introduction, transmission, distribution or uploading of any virus or other potentially harmful programs, materials, information or malicious code into the YourPortfolio Services or any related network;
(vi) use any device or process to retrieve, index, "data mine" or in any way reproduce or circumvent the navigational structure or presentation of the YourPortfolio Services or their contents;
(vii) involve distribution of unsolicited advertising or chain letters, repeated harassment of other users or third parties, impersonating another user, falsifying a user’s network identity for improper or illegal purposes, gaining unauthorised access to any parts of the YourPortfolio Services, sending unsolicited bulk emails or calls, continuing to send someone emails after being asked to stop or using a network to gain unauthorised entry to any other machine accessible via a network;
(viii) involve the unauthorised use of any machine or network, denial of service attacks, falsification of header information or user identification information, monitoring or scanning the networks of others;
(ix) gain unauthorised access to the YourPortfolio Services;
(x) disrupt, impair, alter or otherwise interfere with the functions, features or Content of the YourPortfolio Services; 
(xi) restrict or inhibit any other visitor from using the YourPortfolio Services, including, without limitation, by means of "hacking" or defacing a portion of this YourPortfolio Services;
(xii) express or imply that we have endorsed any statements you make, without our prior written consent;
(xiii) modify, adapt, decompile, reverse engineer, disassemble or otherwise reduce the YourPortfolio Services to a human-perceivable form;

(xiv) remove any copyright, trademark or other proprietary rights notices contained in the YourPortfolio Services;
(xv) harvest or collect information about the Website's visitors or Members without their express consent;
(xvi) are of a commercial nature, including selling, modifying, displaying, distributing or otherwise using any Content, in whole or in part, for any public or commercial purpose without our prior written consent, marketing, advertising or promoting goods or services, collecting and using any product lists or pricing for the benefit of other merchants, or re-selling, sublicensing or translating the Website, App or YourPortfolio Platform;
(xvii) use any meta-tags or any other "hidden text" utilising our name or YourPortfolio.com Content without our express written permission;
(xviii) frame the Website, or utilise framing techniques on any part of the Website, without our express written permission; or
(xix) provide access to the YourPortfolio Services to persons who are not Members or have not paid the relevant fee for the service.

 

29. Registration and Login
29.1 Certain parts of the YourPortfolio Services are only accessible to Members who have registered for a YourPortfolio Account.
 

29.2 You represent and warrant that you are the individual identified in the Application Form, you have all necessary authorities in respect of your Securities and that all information you have supplied to us in connection with your use of the YourPortfolio Services is true and correct.


29.3 You represent that you do not hold an AFSL and are not seeking to open a YourPortfolio Account in your capacity as an authorised representative of an AFSL holder acting on behalf of another person.  


29.4 When using the YourPortfolio Services, you are responsible for maintaining the confidentiality of your login details and for restricting access by third parties to your login details and YourPortfolio Account. 


29.5 You acknowledge that you will be held liable if your login details are used by an unauthorised person and that you are fully responsible for all activities that are conducted under your Account. 


29.6 If you believe that any of your login details have been compromised, lost, or misplaced, you must contact us immediately by email at hello@yourportfolio.com


29.7 You must exercise caution when accessing the YourPortfolio Services using a public or shared computer or mobile device so that others are not able to view or record your login details or other Personal Information.

30. Disclaimer of Warranties and Limitation of Liability
30.1 You agree that you have not relied on any representation, description, illustration or specification that is not expressly stated in these Terms.


30.2 We will use our reasonable endeavours when selecting Service Providers and other third parties that facilitate the YourPortfolio Services. However, we are not responsible for any loss to your Securities which occurs as a result of any act or omission of any Service Provider or any other third party.


30.3 Nothing in these Terms excludes, restricts or modifies any consumer guarantee, right or remedy conferred on you by Schedule 2 to the Competition and Consumer Act 2010 (Cth) or Division 2 of Part 2 of the Australian Securities and Investments Commission Act 2001 (Cth) (ACL), or any other Applicable Law, that cannot be excluded, restricted or modified by agreement.
 

30.4 To the extent permitted by law (including the ACL), we exclude all warranties, whether express or implied (not including any consumer guarantees under the ACL), including any warranties or representations concerning availability of the YourPortfolio Services, quality, completeness, accuracy, suitability, acceptability or fitness for purpose in relation to the YourPortfolio Services including Content, all links to or from the YourPortfolio Services and the goods and services advertised or accessible using the YourPortfolio Services. 


30.5 Subject to the consumer guarantees provided for in consumer protection legislation (including the ACL), we do not warrant that you will have continuous access to the YourPortfolio Services. 


30.6 We will not be liable if the Website or the full functionality of the YourPortfolio Services is unavailable to you due to computer downtime attributable to malfunctions, upgrades, preventative or remedial maintenance activities or interruption in telecommunications supply.


30.7 We do not guarantee the delivery of communications over the internet as such communications rely on third party service providers. 


30.8 The exchange of information electronically is vulnerable to interception by third parties, and we do not guarantee the security or confidentiality of information available through the YourPortfolio Services nor the security of the YourPortfolio Services. Whilst we strive to protect information transmitted via the YourPortfolio Services, you transmit any such information at your own risk.
 

30.9 To the extent permitted by law (including the ACL), our liability of in respect of any non-excludable warranties or conditions relating to the YourPortfolio Services including Content, all links to or from the YourPortfolio Services and the goods and services advertised or accessible using the Content is limited to resupplying the relevant YourPortfolio Services or the reasonable cost of resupplying the relevant YourPortfolio Services, whichever we see fit to provide.


30.10 For all other claims or liability, and to the extent permitted by law, the maximum liability of YourPortfolio and its employees, agents or contractors (including the Service Providers) for any loss, damage, claim, cost or expense whatsoever arising out of or in connection with these Terms, the YourPortfolio Services, all links to or from the YourPortfolio Services and the goods and services advertised or accessible using the YourPortfolio Services will be the amount of any fees received from you in the preceding 12 months in the aggregate of all claims.


30.11 Except where we fail to meet a consumer guarantee under the ACL and notwithstanding any other provision of these Terms, we will not be liable to you for any damage, loss or expense resulting from or caused by:
 

i. any act we carried out in good faith (notwithstanding that such act may have been in breach of these Terms or negligent);
ii. your investment decisions and any acquisitions and sales of Securities you make, regardless of whether they were made in light of Content available on the YourPortfolio Services;
iii. fluctuations in the value of Securities;
iv. any act or omission of any third party;
v. any inaccurate or incorrect Third Party Information;
vi. any inaccurate or incorrect information in your Content or otherwise provided by you;
vii. any event or circumstance beyond our reasonable control including, without limitation, a Force Majeure Event; or
viii. your breach of these Terms, negligence, default, fraud or dishonesty; or
ix. any direct or indirect lost profit, loss of opportunity, incidental, consequential or special damages, howsoever the loss is caused and regardless of whether it was foreseeable or not.


30.12 Except where a Service Provider fails to meet a consumer guarantee under the ACL and notwithstanding any other provision of these Terms, the Service Provider will not be liable to you for any damage, loss or expense resulting from or caused by:
 

i. any act of a Service Provider which was carried out in good faith (notwithstanding that such act may have been in breach of these Terms or negligent);
ii. your investment decisions and any acquisitions and sales of Securities you make, regardless of whether they were made in light of Content made available through the YourPortfolio Services;
iii. fluctuations in the value of Securities;
iv. any act or omission of any third party;
v. any inaccurate or incorrect Third Party Information;

vi. any inaccurate or incorrect information in Your Content or otherwise provided by you;
vii. any event or circumstance beyond the Service Provider's reasonable control including, without limitation, a Force Majeure Event; or
ix. your breach of these Terms, negligence, default, fraud or dishonesty; or
any direct or indirect lost profit, loss of opportunity, incidental, consequential or special damages, howsoever the loss is caused and regardless of whether it was foreseeable or not

 

31. Indemnity
31.1 You agree to indemnify us and the Service Providers in respect of all loss, damage, costs, expenses (including legal fees on a full indemnity basis), fines, penalties, claims, demands, and proceedings incurred howsoever arising, whether at common law (including negligence) or under statute, in connection with any of the following:
 

i. any breach of these Terms by you;
ii. your use of the YourPortfolio Services and Your Content (as applicable); and
iii. your communications with YourPortfolio or the Service Providers.

 

32. Jurisdiction and Law
32.1 These Terms are governed by and must be construed in accordance with the laws of the State of New South Wales, Australia. You submit to the exclusive jurisdiction of the courts of that State and the Commonwealth of Australia in respect of all matters arising out of or relating to these Terms, their performance and subject matter.


33. Severability
33.1 Each provision of these Terms is severable from the others and no severance of a provision will affect any other provision.
 

34. Third Party Beneficiary
34.1 You agree that the Service Providers are third party beneficiaries of these Terms, with all rights to enforce such provisions as if the Service Providers were parties to these Terms.


35. Contacting Us
35.1 If you have questions about the YourPortfolio Services, these Terms or the Privacy Policy, please contact YourPortfolio by emailing hello@yourportfolio.com.


36. Telephone recording

36.1 You authorise us to record any telephone conversation(s) between you and us, with or without an automatic tone warning device.
 

36.2 You acknowledge that any recording is our property, and that we may keep a record of the recording for as long as we believe is reasonable.


37. Definitions and Interpretation
37.1 In these Terms unless the context requires otherwise:


ADI means an authorised deposit-taking institution within the meaning of section 5 of the Banking Act 1959 (Cth).

AFSL means an Australian financial services licence.

 

Applicable Law means the Corporations Act 2001 (Cth), the Corporations Regulations 2001 (Cth), ASIC Market Integrity Rules, rules of an Exchange or any other applicable rules, statute, statutory instrument or general law in Australia or any other jurisdiction that is applicable to a party in connection with these Terms. 
 

Application Form means the application form to become a Member made available on the Website from time to time.
 

App means the YourPortfolio.com application downloaded by a user to a mobile device.
 

ASX means ASX Limited ACN 008 624 691 or the Securities exchange which it operates, as the context requires.
 

ASX Rules means, as applicable:
 

(i) the operating rules of ASX Settlement Pty Ltd ACN 008 504 532;
(ii) the operating rules of ASX Clear Pty Limited ACN 001 314 503; and/or
(iii) any other rules regulating the market for products operated by ASX. 

 

Best Execution Policy means the best execution policy of the Market Participant as amended from time to time.
 

Brokerage means a fee or commission charged to execute an order placed by a Member.

 

Business Day means a day on which banks are open for general banking business in Sydney, New South Wales, Australia, excluding Saturdays, Sundays and public holidays in that city.


Cash Balance, in respect of a Member, means the amount of cash held by YPS in the Trust Account on behalf of the Member.
 

Cboe means Cboe Australia Pty Ltd (ACN 129 584 667) the operator of a securities exchange in Australia.
 

Confidential Information means all information belonging or relating to us and/or the YourPortfolio Platform, the App, the Website, or the YourPortfolio Services whether oral, graphic, electronic, written or in any other form, that:
 

  • is or should reasonably be regarded as, confidential to us; or

  • is not generally available to the public at the time of disclosure other than by reason of a breach of these Terms;

 

Content means any content made available on the Website or App.
 

Content Provided by Other Members means the content uploaded, posted, linked to, stored, communicated, sent or transmitted via the YourPortfolio Platform by Members other than you.
 

Corporate Action has the meaning given in the Nominee Terms.
 

Credit Reporting Body has the meaning given to this term in the Privacy Act 1988 (Cth).
 

Custodian means the person appointed to hold legal title to Securities beneficially owned by Members as bare trustee, which will be OMN.


Document Verification Service means the national Australian document verification service operated by the Australian federal government which enables authorised entities to electronically verify evidence of identity documents issued by federal, State and Territory government agencies.


Exchange means a licensed financial market through which trading, clearing and settlement of Securities can take place.
 

Force Majeure Event means any act, event or cause including:

  • an act of God, peril of the sea, accident of navigation, war, sabotage, riot, act of terrorism, insurrection, civil commotion, national emergency (whether in fact or law), martial law, fire, lightning, flood, cyclone, earthquake, landslide, storm or other adverse weather conditions, explosion, power shortage, strike or other labour difficulty (whether or not involving employees of the party concerned), epidemic, quarantine, radiation or radioactive contamination;

  • an action or inaction of a Government Agency, including expropriation, restraint, prohibition, intervention, requisition, requirement, direction or embargo by legislation, regulation, decree or other legally enforceable order; or

  • breakdown of plant, machinery or equipment or shortages of labour, transportation, fuel, power or plant, machinery, equipment or material,

 
to the extent that the act, event or cause directly or indirectly results in a party being prevented from or delayed in performing one or more of its obligations under these Terms and that act, event or cause is beyond the reasonable control of that party;

 

Gift Card means a gift card issued by GiftX that can be used through our Website or App to acquire a beneficial interest in Securities that will be held by the Custodian in accordance with these Terms.
 

Market Participant means an executing broker who is a participant of an Exchange and has been appointed to execute Trades in Securities in the Custodian’s name in accordance with instructions you provide to YPO. The Market Participant is OMN, a market participant of ASX, Cboe Australia and NSX, and a participant of ASX Clear and a participant of ASX Settlement.
 

Member means a user who has completed an Application Form in accordance with these Terms and whose application was accepted under clause A3(a) and 


Membership has a corresponding meaning.
 

Month means a period extending from a date in one calendar month to the corresponding date in the following month.
 

Nominee Terms means the terms under which the Custodian is appointed to hold Securities on your behalf as set out in Part D.
 

NSX means National Stock Exchange of Australia Limited ACN 000 902 063 the operator of a securities exchange in Australia.
 

Personal Information means information or an opinion about you, or from which you are reasonably identifiable and includes your name, address, date of birth, credit card details, YourPortfolio.com login details and any other information you have entered into the YourPortfolio about yourself.
 

Portfolio means the Securities which the Custodian holds on trust for you as bare trustee.

 

Privacy Policy means the privacy policy found a  www.YourPortfolio.com/privacy-policy.
 

Resolution means an ordinary resolution, special resolution or extraordinary resolution which has been put to the members of an entity.
 

Securities means financial assets (which may include shares, interests in managed investment schemes, options and convertible instruments), which we select in our discretion, in which Trades may be conducted using the Platform.
 

Service Providers means the service providers appointed by YourPortfolio from time to time, including but not limited to, the Custodian or the Market Participant.
 

Subscription Fee means the amount you pay us to access certain features of the Platform for a particular period.
 

Third Party Information means information supplied by another Member or third party and incorporated into the Website or App, including:

  • Current price and historical price information in relation to Securities provided by the Market Participant;

  • research and analysis in relation to Securities provided by third parties;

  • Content provided by Other Members.

 
Trades has the meaning given to it in clause 14.


Trading Day means the general hours during which the Australian Securities markets are open for trading, being 10am - 4:10pm AEST (Monday to Friday).


Trust Account has the meaning given to it in clause 8.1.


Trusted Adult means a person nominated by a Member in accordance with clause 5.1.
 

Website means yourportfolio.com.


Your Content has the meaning given in clause 25.4.


YourPortfolio Services means the Website, App, YourPortfolio Platform or Securities Trading Service.

 

YourPortfolio Account means a trading account through which you can place orders and trade Securities using the YourPortfolio Platform.  It includes your Cash Balance and your Portfolio.


YourPortfolio Platform means our system through which you give us instructions to execute your Trades and access information about the Securities in your Portfolio, including but not limited to our Website, our App and any dealings between you and us which occur via live chat, telephone, email and social media.


Interpretations
37.2 In these Terms unless the context requires otherwise:

  • the singular includes the plural and vice versa;

  • a gender includes the other genders;

  • the headings are used for convenience only and do not affect the interpretation of these Terms;

  • other grammatical forms of defined words or expressions have corresponding meanings;

  • a reference to a document includes the document as modified from time to time and any document replacing it;

  • a reference to a party is to a party to these Terms and a reference to a party to a document includes the party's executors, administrators, successors and permitted assigns and substitutes;

  • if something is to be or may be done on a day that is not a Business Day then it must be done on the next Business Day;

  • the word "person" includes a natural person, partnership, body corporate, association, governmental or local authority, agency and any body or entity whether incorporated or not;

  • the word "month" means calendar month and the word "year" means 12 months;

  • the words "in writing" include any communication sent by letter, facsimile transmission or email or any other form of communication capable of being read by the recipient;

  • a reference to a thing includes a part of that thing;

  • a reference to all or any part of a statute, rule, regulation or ordinance (statute) includes that statute as amended, consolidated, re-enacted or replaced from time to time;

  • wherever "include", "for example" or any form of those words or similar expressions is used, it must be construed as if it were followed by "(without being limited to)";

  • money amounts in these Terms, the Website, the App and the YourPortfolio Platform are stated in Australian currency unless otherwise specified;

  • a reference to time is to Sydney, Australia time;

  • a reference to any agency or body, if that agency or body ceases to exist or is reconstituted, renamed, or replaced or has its powers or functions removed (defunct body), means the agency or body which performs most closely the functions of the defunct body; and

  • any agreements, representation, warranty, or indemnity by two or more parties (whether those parties are included in the same defined term or not) binds them jointly and separately.

 

PART D: NOMINEE TERMS
38. Appointment
38.1 You acknowledge that you have read and understand and agree to be bound by these Nominee Terms.
 

38.2 Appointment of OMN as custodian on and from the Effective Date of any Securities which form part of your Portfolio (the Financial Products), in accordance with Applicable Law.


38.3     OMN agrees to:


i. take custody of your Financial Products and any documents evidencing title to your Financial Products as bare trustee for you and hold them on your behalf; 
ii. hold your Financial Products as bare trustee and register your Financial Products in its name; and
iii. on your request, through YPO (as your agent) acknowledge the way it holds any property or other assets on your behalf.

 

38.4 Unless otherwise provided for in these Nominee Terms:
OMN may not exercise any rights attached to the ownership of your Financial Products, including disposing of, or otherwise dealing in, your Financial Products, unless it receives an instruction to do so from YPO as your agent so; and
OMN has not, and will not, acquire a beneficial or proprietary interest whatsoever in your Financial Products, or the income and rights accruing or pertaining to the Financial Products.


38.5 You acknowledge and agree that any Financial Products held on your behalf by OMN will be held in an omnibus account, meaning that your Financial Products will be held with other financial products held by OMN on behalf of other Members in the manner prescribed in, and in accordance with Applicable Law (Omnibus Account).


39. Sub-Custodians
39.1 You acknowledge and agree that OMN may, without your prior written consent, appoint and use the services of any other person or Service Provider as a sub-custodian in respect of your Financial Products (Sub-Custodian).
 

39.2 OMN has agreed to take reasonable care in the selection, appointment, and periodic review of any Sub-Custodian that it appoints and procure that any Sub-Custodian will comply with the provisions of these Nominee Terms in relation to your Financial Products.
 

39.3 Subject to clause 47.1 of these Nominee Terms, provided OMN has complied with its obligations under clause 39.2 of these Nominee Terms, OMN has no liability for the bankruptcy or insolvency of a Sub-Custodian, or for the acts or omissions of a Sub-Custodian.

 

39.4 OMN will provide written notice to YPO of, and contact information for, any Sub-Custodian appointed or to be appointed by OMN to hold your Financial Products. Such notice must, unless clause 39.3 of these Nominee Terms applies, be given to YPO before any property is held by the Sub-Custodian. For the avoidance of doubt, per clause 53 of these Nominee Terms, your continued use of the YourPortfolio Platform is acceptance of any variation in these Nominee Terms, including appointing or changing a Custodian or Sub-Custodian, and hence will represent the required written notice under this clause.
 

39.5 If OMN is compelled to appoint a replacement Sub-Custodian on an urgent basis following events beyond its reasonable control, OMN will provide notice of the appointment of such Sub-Custodian as soon as is reasonably practicable after such appointment.
 

40. Instructions
40.1 Instructions in respect of your Financial Products must be given to YPO via the YourPortfolio Platform, in accordance with the Terms and Conditions. YPO will act as your agent to communicate your instructions to OMN.
 

41. Record keeping
41.1 OMN will maintain records in accordance with the Terms and Conditions and in any event will maintain records of:
 

i. the property to which these Nominee Terms relate which clearly identify that the property is held on your behalf; and
ii. all dealings in relation to that property, including by whom, when and how those dealings were authorised.

 

41.2 OMN will apply verification procedures for the appropriately frequent reconciliation and checking of the Financial Products the subject of these Nominee Terms.
 

41.3 All records in relation to your YourPortfolio Account will be kept and maintained by OMN and made available to you upon request, including details of:
 

i. the verification procedures in relation to the reconciliation and checking of the balances of customer assets held by OMN; and
ii. OMN’s reporting requirements.

 

42. Corporate Actions 
42.1 YPO will use its best endeavours to arrange for you to have access to electronic copies (via the YourPortfolio Platform) of any annual accounts, notices of meeting, and other documents or information provided to OMN with respect to your Financial Products. 
 

42.2 However, you acknowledge that YPO reserves the right to take no action in relation to any Corporate Action for legitimate business, prudential or regulatory reasons, or if it would otherwise be impractical for YPO to pass on any such Corporate Action.
 

42.3 YPO will use its best endeavours to give you notice of any:

 

i. Voluntary Corporate Actions;
ii. Mandatory Corporate Actions With Choice; and
iii. Mandatory Corporate Actions Without Choice,

 

which arise in respect of your Financial Products. Such notice will specify a date by which you must return any valid election correspondence in respect of that Corporate Action (Corporate Action Notice Date). You acknowledge that the Corporate Action Notice Date may not correspond with the deadline set by the relevant entity in respect of that Corporate Action.
 

42.4 Additional terms and conditions may apply to individual Corporate Actions. YPO will provide you with any supplementary terms and conditions upon notification of any Corporate Actions you may be entitled to participate in.
 

42.5 When you acquire Securities via the YourPortfolio Platform, you may be asked to make a default election in respect of certain:
 

i. Voluntary Corporate Actions; and
ii. Mandatory Corporate Actions With Choice.

 

42.6 If OMN holds Securities in an entity on your behalf and that entity proposes to undertake a Voluntary Corporate Action, then:
 

i. if OMN has received an instruction from YPO as to whether you wish to participate in that Voluntary Corporate Action, OMN will use its reasonable best endeavours to give effect to that instruction; and
ii. if YPO has not instructed OMN as to whether you wish to participate in that Voluntary Corporate Action, OMN will take no further action in respect of that Voluntary Corporate Action.


42.7 The YourPortfolio Platform does not currently provide access to dividend or distribution reinvestment plans and will instead direct for any dividend or distribution amounts to be paid in cash to the Trust Account (and your Cash Balance will be credit with the relevant amount).


42.8 If OMN holds Securities in an entity on your behalf and that entity proposes to undertake a Mandatory Corporate Action With Choice, then:
 

i. if OMN has received an instruction from YPO as to whether you wish to participate in that Mandatory Corporate Action With Choice, OMN will use its reasonable best endeavours to give effect to that instruction; and
ii. if OMN has not received an instruction from YPO as to whether you wish to participate in the Mandatory Corporate Action With Choice, OMN will use its best endeavours to act in accordance with the default terms put forward by the relevant entity in respect of that Corporate Action, except if OMN has otherwise specified an alternative default option (for example, in the notice it will endeavour to give to YPO under clause D5(c).

 

42.9 If OMN holds Securities in an entity on your behalf and that entity proposes to undertake a Mandatory Corporate Action Without Choice:

 

i. OMN will be required to participate in that Corporate Action on your behalf; and
ii. you will not be able to make an election in respect of that Corporate Action.

 

43. General
43.1 If, because of a Corporate Action, you are entitled to:

 

i. a fraction of a security; or
ii. a fraction of a cent (for example, following payment of a dividend, distribution or otherwise),

 

OMN will round that fraction down to the nearest whole number or the nearest whole cent, as applicable. If, as a result of the operation of this clause 43.1, OMN holds surplus Securities, it may sell these Securities and distribute the proceeds of the sale proportionally to Members (including you). OMN and/or YPO reserves the right to retain or sell fractional Securities and not distribute them at its discretion, for legitimate business, prudential or regulatory reasons. OMN and/or YPO will be entitled to, and will retain, any amounts collected under clause 43.1(ii).
 

43.2 If the terms of a Corporate Action require an election to be made on behalf of OMN’s entire nominee holding in an entity, OMN reserves the right not to pass on that Corporate Action to YPO, where it is reasonable to do so. OMN will use its best endeavours to give you an alternative option in respect of that Corporate Action, but it cannot guarantee that this will match the options offered by that entity. 


43.3 Any cash proceeds allocated to you because of a Corporate Action will be credited to your Cash Balance as soon as reasonably practicable after the date on which those cash proceeds are credited to the Trust Account.
 

43.4 Any Securities allocated to you arising because of a Corporate Action will be distributed to your Portfolio as soon as reasonably practicable after the date on which the Securities allocation are received by OMN.
 

43.5 Some Corporate Actions may have withholding tax applied, in which case:
 

i. withholding tax will be deducted from your Cash Balance; or
ii. OMN may sell down your Financial Products to recover the withholding tax amount.

 

43.6 Upon notification of a Security being removed from the official list of an Exchange, OMN reserves the right to transfer the respective Securities out of your Portfolio into the name of the YourPortfolio Account holder with the respective share register prior to the date of delisting. Where possible, OMN will make reasonable endeavours to notify YPO of the delisting and provide you with alternative options regarding the relevant Securities.


44. Voting
44.1 YPO will not provide instructions to OMN to exercise any voting rights attached to the Securities it holds on your behalf.
 

45. Substantial holder notices 

45.1 As a bare trustee, OMN is not required to lodge substantial holder notices on your behalf. You acknowledge and agree that it is your responsibility to lodge a substantial holder notice (or any other equivalent notice in other jurisdictions) in accordance with the Corporations Act (or other relevant law in other jurisdictions).


46. Fees 
46.1 In accordance with the Terms and Conditions, you agree to pay OMN’s normal fees, charges, and costs, and to reimburse OMN for any extraneous costs such as GST.

47. Liability and indemnity
47.1 Subject to clause 47.2 of these Nominee Terms, OMN will be liable to you for any damage, claim or loss incurred by you in connection with or arising from a failure by OMN, or any Sub-Custodian engaged by OMN, to either:
 

i. comply with its duties under these Nominee Terms; 
ii. observe reasonable standards generally applied by providers of custodial services,

iii. provided however, that OMN will not be liable to you:

a. in any circumstances for any consequential loss or damage (including any loss of profits, revenue or opportunity); and
b. for any loss where such losses arise in connection with, or because of, the insolvency of any person it has engaged (whether directly or indirectly) to hold such property, provided that OMN has taken reasonable care in engaging and monitoring compliance by that person with the terms of its appointment.

 

47.2 To the maximum extent permitted by law, in no event shall OMN, any of its related bodies corporate, or any of their officers, directors, agents, representatives or employees be liable for any damage, claim or loss (including, without limitation, incidental loss, indirect or consequential loss, exemplary damages, loss of profits or loss of revenue) incurred by you in connection with or arising from:
 

i. any failure by you to comply with these Nominee Terms;
ii. any failure by OMN to pass on Corporate Actions to YPO or arrange for you to exercise voting rights attaching to Securities that OMN holds on your behalf in accordance with 44 or 45 of these Nominee Terms, respectively; or
iii. OMN holding of your Financial Products.

 

47.3  In addition to any other indemnities provided by you under these Nominee Terms, you agree to indemnify and hold OMN, any of its related bodies corporate, and any of their officers, directors, agents, representatives, or employees (Indemnified Parties) harmless against any losses, actions, costs, claims, damages, demands, expenses, proceedings, and liabilities paid, suffered or incurred by the Indemnified Parties directly or indirectly because of:

 

i. any of the Indemnified Parties acting under, or in connection with, these Nominee Terms, except to the extent that any loss is caused by the negligence, fraud or dishonesty of any Indemnified Party;
ii. any breach by you of these Nominee Terms; or
iii. OMN’s holding of your Financial Products,
and you agree to pay any such costs or the amount of loss or damage to the relevant Indemnified Party on demand.

 

47.4 Each indemnity in these Nominee Terms (including in this clause 47 and otherwise):
is a continuing obligation, which is independent of and separate from your other obligations; and
survives the termination of these Nominee Terms.

 

48. No Personal Advice
48.1 You acknowledge that OMN does not give personal advice or make personalised recommendations. It is therefore your responsibility, before ordering the purchase or sale of any Securities via the YourPortfolio Platform, to assess and evaluate the proposed transaction considering your financial situation, investment objectives and particular needs.
 

49. Encumbrances
49.1 OMN will not take or grant a charge, mortgage, lien or other encumbrance over, or in relation to, your Financial Products unless it is:

i. for expenses and outlays made in accordance with the Terms and Conditions (other than any unpaid fees of OMN); or
ii. entered in accordance with your prior written consent.


50. Breach reporting
50.1 OMN will notify YPO in writing if:

i. it is aware that it has breached these Nominee Terms in any material respect; or
ii. it no longer intends to be bound by these Nominee Terms.


51. Termination
51.1 Subject to OMN other rights under these Nominee Terms and the completion of any outstanding obligations, these nominee arrangements will terminate on the earliest to occur of termination of your Membership the agreement and termination of the Terms and Conditions.


51.2  On termination of these nominee arrangements, YPO will close your YourPortfolio Account, and OMN will, subject to clause 20 of the Terms and Conditions, sell the Securities it holds on your behalf and transfer the cash proceeds and any other cash balances it holds on your behalf to you, or as directed by YPO as your agent, in accordance with the Terms and Conditions and within a reasonable time.

 

51.3 OMN will establish, and always during these nominee arrangements, maintain business continuity arrangements that are reasonable for a business of the nature, scale, and complexity of OMN’s business.


52. Confidentiality
52.1 OMN must not disclose any confidential information relating to you, apart from any disclosure:

i. to ASIC or any other regulatory body as required by law;
ii. as required or permitted by law or by you in writing; or
iii. as permitted under the Terms and Conditions (as may be amended and/or supplemented from time to time).

 

53. Variation 
53.1 OMN may from time to time amend or vary these Nominee Terms by giving written notice to you in accordance with the Terms and Conditions.


53.2 If OMN varies these Nominee Terms, the changes shall apply to all dealings between you and OMN on and from the day on which the variation takes effect and your continued use of the Securities Trading Service is acceptance of the variation.

 

54. Severance
54.1 If any part of these Nominee Terms is found to be void or unenforceable (for example, if a court or other tribunal or authority declares it so), the remaining parts of these Nominee Terms will continue to apply.
 

55. No waiver
55.1 No waiver of any breach of these Nominee Terms will be affected unless the waiver is in writing and signed by the party against whom the waiver is claimed.

56. Governing laws
56.1 These Nominee Terms are governed by and interpreted in accordance with the laws of New South Wales, Australia. You submit to the non-exclusive jurisdiction of the courts of New South Wales and courts competent to hear appeals from those courts.
 

57. Privacy Policy 
57.1     Any of Your personal information held by OMN will be handled in accordance with the OM Privacy Policy. This policy details how OMN complies with the requirements of the Privacy Act 1988 (Cth) regarding the handling of Your personal information.
 

58. Definitions and interpretation
58.1 A term which has a defined meaning in the Terms and Conditions has the same meaning when used in these Nominee Terms unless it is expressly defined in these Nominee Terms, in which case the meaning in the Nominee Terms prevails.
 

58.2 In these Nominee Terms, unless expressly provided otherwise:
 

Corporate Action” means an action taken by an entity in which OMN holds Securities on your behalf which has a direct effect on the holdings of that entity’s securityholders. A Corporate Action includes a Voluntary Corporate Action and a Mandatory Corporate Action.


Corporate Action Notice Date” has the meaning given to that term in clause 42 of these Nominee Terms.
 

Effective Date” means the date on which you sign up to use the YourPortfolio Platform and agree to be bound by the Terms and Conditions.


Financial Products” has the meaning given to that term in clause 38.2 of these Nominee Terms.
 

Indemnified Parties” has the meaning given to that term in clause 47.3 of these Nominee Terms.
 

Mandatory Corporate Action” means a Corporate Action which is not discretionary and affects all securityholders. Examples of Mandatory Corporate Actions include cash dividends, capital repayments, share splits, bonus issues, capital reconstructions, and compulsory acquisitions of Securities.

 

Mandatory Corporate Action With Choice” means a Mandatory Corporate Action which provides you with a choice of alternative options.


Mandatory Corporate Action Without Choice” means a Mandatory Corporate Action which does not provide you with a choice of alternative options.


Omnibus Account” has the meaning given to that term in clause 38.5 of these Nominee Terms.
 

Sub-Custodian” has the meaning given to that term in clause 39 of these Nominee Terms.
 

Terms and Conditions” means the terms and conditions which apply in respect of all dealings between you, YPS and YPO, as amended from time to time, to which these Nominee Terms have been attached as Part D.
 

Voluntary Corporate Action” means a Corporate Action which is discretionary, being a Corporate Action in which a securityholder may elect to participate.


Examples of Voluntary Corporate Actions include takeover offers, share purchase plans, or dividend or distribution reinvestment plans.


57.3 Clause 37 (“Definitions and Interpretations”) of the Terms and Conditions applies to the Nominee Terms.


Updated 29th September 2022