ad iser deed securitor
TRANSCRIPT
Ad iser Deed
Securitor Financial Group Ltd ABN 48 009 189 495
and
[Insert Practice name] ABN [insert Practice ABN]
and
[Insert Adviser name]
WBC.502.003.0101
securitor
Parties
1.
2.
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7.
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11.
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Interpretation
1.1 Definitions
1.2 Interpretation
Commencement date
Appointment of Representative
Suspension and variation
Adviser's obligations
5.1 Warranties
5.2 Provision of Authorised Services
5.3 Limitation of authority
5.4 Notification obligations
5.5 Conduct of the Adviser
5.6 Confidential information
5.7 I ntellectual property
5.8 Other property
5.9 The Licensee's Right to Inspect and Audit
5.10 Incoming Transfer Agreement
5.11 Reference checking arrangement
Practice's obligations
6.1 Compliance by the Adviser
6.2 Partnership
Clients
Indemnity
Insurance
Not used
Termination
11.1 Term
11.2 Termination by the Adviser or the Practice for breach
11.3 Termination by the Licensee for breach
11.4 Termination by the Adviser or Practice
11.5 Termination by the Adviser following notification of variation
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11.6 Termination of the Corporate Authorised Representative Agreement 18
11.7 Termination of relationship with the Practice 18
11.8 Termination obligations 18
11.9 Restrictions following termination 18
11.10 Return of property on termination 19
11.11 Client Files after termination 19
11.12 Accrued rights 19
11.13 Survival 19
12. Special Conditions 19
13. Dispute resolution 19
14. Miscellaneous 20
14.1 Costs and stamp duty 20
14.2 Notice 20
14.3 Proper law and jurisdiction 20
14.4 Entire Agreement 20
14.5 Representations 21
14.6 Further assurances 21
14.7 Variation 21
14.8 Assignment 21
14.9 Waiver 21
14.10 Remedies cumulative 21
14.11 Acknowledgement by the Adviser 21
Schedule 2 - Special Conditions 23
Signing page 24
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Oate: ______________________________ __
Parties Securitor Financial Group Ltd ABN 48 009 189495 (Licensee) Level 20, Westpac Place 275 Kent Street Sydney NSW 2000
and
The party whose name and address is set out in Item 1 of Schedule 1 to this Deed (Practice).
and
The party whose name and address is set out in Item 2 of Schedule 1 to this Deed (Adviser).
Background
A The Licensee is an AFS Licensee under the Corporations Act.
S The Licensee has entered into a Corporate Authorised Representative Agreement with the Practice in relation to the operation of a business providing financial planning and related services.
C In order to facilitate the operation of that business, the Practice has nominated the Adviser to represent the Licensee in providing the Authorised Services.
D The Practice proposes that the Adviser be appointed as a Representative of the Licensee for the purpose of providing the Authorised Services.
E The Adviser is appointed as a Representative of the Licensee to provide the Authorised Services, on the terms set out in this Deed, as amended from time to time.
General Terms
1. Interpretation
1.1 Definitions
4
Unless otherwise required by the context or subject matter:
Adviser Authorisation means a written notice, in a form as directed by the Licensee, provided to the Adviser, as varied from time to time, authorising the Adviser to provide:
(a) particular Financial Services on behalf of the Licensee;
(b) other services with the support and assistance of the Licensee; or
(c) any combination of the above.
AFSL means an Australian financial services licence granted pursuant to the Corporations Act.
AFS Licensee means the holder of an AFSL.
Approved Product List means the list of financial products which have been approved for use by the Licensee as amended by the Licensee from time to time.
ASIC means the Australian Securities and Investments Commission.
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Authorised Services means the Financial Services and other services that the Adviser is authorised to provide by the Adviser Authorisation, subject to any restrictions or modifications:
(a) specified in this Deed (including Schedule 2) or the Corporate Authorised Representative Agreement; and
(b) subsequently notified by the Licensee or the Practice to the other parties.
Business Day means a day other than a Saturday, Sunday, public holiday or bank holiday in Melbourne, Victoria.
Business Tools and Services means all tools, materials, software and services provided by the Licensee, or which the Licensee arranges for third parties to provide:
(a) to or for the benefit of the Practice, an Adviser or the Practice's clients from time to time; or
(b) in relation to placements lodged or services provided by Representatives of the Licensee,
and includes those products, software and services referred to in Item 2 of Schedule 1 of the Corporate Authorised Agreement and the software referred to in the Corporate Authorised Agreement but excludes financial products and financial services provided or undertaken by the Licensee.
Client means a person to whom the Practice or an Adviser provides Authorised Services.
Client Files means all information including questionnaires, statements of advice, records of any Financial Services, Client details, working papers, notes, research and correspondence to which the Practice or an Adviser has access (whether in hard copy, electronic form or otherwise) relating to any Client.
Commencement Date means the date set out in Item 3 of Schedule 1.
Corporations Act means the Corporations Act 2001 (Cth).
Corporate Authorised Representative Agreement means the agreement between the Licensee and the Practice setting out terms and conditions in relation to the operation of the Practice Business and appointing the Practice as a Representative of the Licensee.
Deed means this deed as amended, supplemented or varied from time to time.
Dispute Resolution System means the Licensee's dispute resolution procedures as notified by the Licensee to the Practice from time to time.
Financial Services means financial services within the meaning of the Corporations Act.
Incoming Transfer Agreement means an agreement entered into, or to be entered into, by the Licensee with an AFS Licensee:
(a) of which an Adviser was previously a Representative; or
(b) who provided Financial Services to clients that the Practice or an Adviser wishes to become Clients of the Licensee,
which agreement deals with (amongst other things) the transfer of clients, commission rights or other remuneration rights or servicing rights to the Licensee, the Practice or an Adviser. There may also be other parties to the agreement.
Insolvent means in relation to a Party:
(a)
(b)
(c)
the Party disposes of the whole or part of its assets, operations or business other than in the ordinary course of business;
where the Party carries on a business, that Party ceases to carry on business;
the Party ceases to be able to pay its debts as they become due;
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(d) any step is taken by a mortgagee to take possession or dispose of the whole or part of that Party's assets, operations or business;
(e) any step is taken to enter into any arrangement between that Party and its creditors;
(f) any step is taken to appoint a receiver, a receiver and manager, a trustee in bankruptcy, a provisional liquidator, a liquidator, an administrator or other like person of the whole or part of that Party's assets, operations or business; or
(g) where that Party is a partnership, any step is taken to dissolve that partnership.
Licensee Business means the business of providing Financial Services, carried on by the Licensee.
Licensee Client has the meaning given to it in clause 11.9(a).
Partner means, where the Practice is a partnership, each person whose name and address is set out in Item 1 of Schedule 1.
Party means the Licensee, Practice or Adviser, as the case requires.
Practice Business means the business of providing Authorised Services and related services to Clients carried on by the Practice and the Advisers in connection with this Agreement.
Product Provider means an issuer or seller of financial products.
Protocol means the document (as amended from time to time) published by the Australian Bankers Association called "Financial Advice - Recruitment and Termination: Reference Checking and Information Sharing Protocof' or any other similar (whether formal or informal) financial adviser reference checking arrangement.
Qualification Criteria means the training, competency and education requirements specified from time to time by the Licensee, which a person must meet in order to be appropriate to become and remain a Representative of the Licensee, and includes all accreditation criteria required by ASIC or the Relevant Laws.
Relevant Laws means all legislation and legislative instruments made under such legislation; ASIC policy, instruments, guidance, directives and class orders; any industry codes, guidance notes, standards or policies; and any policies issued by a regulator, which apply to the obligations of the Practice or an Adviser under this Agreement, an Adviser Deed, the Practice Authorisation or an Adviser Authorisation, including the Corporations Act, the Australian Securities and Investments Commission Act 2001 (Cth), the Competition and Consumer Act 2010 (Cth), the Privacy Law, the AMUCTF Laws and the Financial Planning Association of Australia's Code of Ethics and Rules of Professional Conduct.
Representative means an authorised representative under an AFSL.
Restraint Area means:
(a) a radius of 10 kilometres from any premises in which the Practice carries on business;
(b) a radius of 25 kilometres from any premises in which the Practice carries on business;
(c) a radius of 50 kilometres from any premises in which the Practice carries on business;
(d) each State or Territory in Australia in which the Practice carries on business; and
(e) Australia.
Restraint Period means the following number of months after the termination of this Agreement:
(a) 3 months;
(b) 6 months; and
(c) 12 months.
Term means the term of this Deed as set out in clause 11.1.
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Transferred Clients means a Client transferred to the Transferee in accordance with the Corporate Authorised Representative Agreement.
Transferee means another AFS Licensee.
1.2 Interpretation
In this Deed, unless the contrary intention appears:
(a) terms not defined in this Deed but which are defined in the Corporate Authorised Representative Agreement have the same meaning when used in this Deed as in the Corporate Authorised Representative Agreement; and
(b) clause 1.2 of the Corporate Authorised Representative Agreement applies to the interpretation of this Deed as if it were set out in full in this Deed with references to "Agreement" read as if they were references to "Deed".
2. Commencement date
This Deed commences on the Commencement Date.
3. Appointment of Representative
(a) The Practice appoints the Adviser to act as a Representative of the Licensee to enable it to provide the Authorised Services on behalf of the Practice and the Licensee.
(b) The Licensee consents to the Adviser being appointed as a Representative of the Licensee, and consents to the Practice providing the Adviser with an Adviser Authorisation, to enable it to provide the Authorised Services on behalf of the Practice and the Licensee.
(c) The Licensee shall attend to the necessary lodgement of a notification of appointment of a Representative and any other forms required under the Relevant Laws in order to enable the Adviser to perform the Authorised Services. The Practice and Adviser shall provide the Licensee with all information that the Licensee requires for this purpose within sufficient time for the Licensee to comply with any time limits imposed by the Relevant Laws.
(d) The Adviser acknowledges that it will be remunerated by the Practice and not the Licensee.
4. Suspension and variation (a) Subject to clause 4(b) below, the Licensee may, in its sole discretion, vary, suspend or revoke the
Adviser Authorisation by providing not less than 14 days' written notice to the Adviser and Practice, in which case clause 4(d) will apply.
(b) The parties agree there may be circumstances where the notice period set out in clause 4(a) above is either not capable of being performed, or is not necessary in the circumstances. This includes, but is not limited to:
(i) a situation where ASIC varies the Licensee's AFSL impacting the Adviser Authorisation; or
(ii) where the Adviser has committed a material breach of this Deed which has not been remedied in accordance with clause 11.3 (as applicable).
(c) The Practice may, in its sole discretion, restrict the Adviser Authorisation or suspend or revoke the Adviser Authorisation by notice to the Adviser and the Licensee.
(d) If the Licensee or the Practice varies or suspends the Adviser Authorisation:
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(i) the Practice must, at the Licensee's reasonable written request, notify each Client in writing in a form approved by, or in a form specified by, the Licensee (or, at the Licensee's election, the Licensee may itself send such notification) and the Practice must provide confirmation of each such notification to the Licensee;
(ii) the Adviser must return any specified material, obtained from or through association with the Licensee, including any promotional material and computer software which relates to the removed Authorised Services, to the Licensee within five Business Days or such other period as the Licensee may specify in writing; and
(iii) the Licensee will, to the extent necessary to give effect to the variation or suspension, vary or revoke the authorisation of the Adviser to provide Authorised Services.
5. Adviser's obligations 5.1 Warranties
The Adviser warrants and continues to warrant throughout the term of this Deed to the Licensee that:
(a) all the information given by the Adviser to the Practice or the Licensee to enable the Practice or the Licensee to determine whether to appoint or consent to the appointment of the Adviser as a Representative of the Licensee was and remains true and correct and no information material to that determination was omitted;
(b) the Adviser has disclosed, and will from time to time disclose, to the Licensee all other businesses conducted by the Adviser;
(c) the Adviser is able to enter into this Deed and to perform fully all of its obligations under it;
(d) the Adviser is not subject to a restraint that prevents or seeks to prevent it from:
(i) entering into, or performing any of its obligations under this Deed; or
(ii) introducing Clients to the Licensee,
except as notified in writing by the Adviser or the Practice to the Licensee prior to execution of this Deed.
(e) except as disclosed in writing to the Licensee, the Adviser:
(i) does not hold an AFSL;
(ii) has not ever held an AFSL, securities dealer's licence or investment adviser licence which has been suspended or cancelled;
(iii) is not and has never been Insolvent;
(iv) is at all times of good fame and character;
(v) is a fit and proper person to engage in the Authorised Services in accordance with ASIC guidance;
(vi) will at all times continue to satisfy the Qualification Criteria in relation to the provision of the Authorised Services;
(vii) is not and never has been subject to a banning or suspension order made by ASIC or a disqualification or other related order made by a court or charged or found guilty of fraud or other offence which is likely to mean that the Licensee would not consider them to be of good fame and character;
(viii) is not a party to any prosecution, litigation, arbitration, proceeding or investigation, and there is no such prosecution, litigation, arbitration, proceeding or investigation threatened;
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(ix) has not been charged or convicted of a serious fraud within the last 10 years;
(x) is not a Representative of another AFS licensee unless the Licensee has provided written consent to the Adviser being a Representative of another AFS licensee.
5.2 Provision of Authorised Services The Adviser:
(a) will provide Authorised Services on behalf of the Licensee in accordance with this Deed;
(b) acknowledges and agrees that it must only provide Authorised Services directly and must not delegate the provision of Authorised Services to any person who is not a Representative of the Licensee, unless otherwise permitted in writing by the Licensee;
(c) must ensure that the warranties in clause 5.1 are and continue to be true and must give the Licensee notice immediately if this ceases to be the case;
(d) must give prompt, courteous and efficient service to all Clients;
(e) must maintain a record of the training it undertakes;
(f) must comply with any guidelines, policies, codes of practice, operating rules, procedures and reasonable written requirements or directions given to it from time to time by the Licensee in relation to any activity the Adviser undertakes on behalf of the Licensee, including any Authorised Services. The provisions of this Deed shall prevail if, and to the extent that, any such guidelines, policies, codes of practice, operating rules, procedures or written requirements are inconsistent with the provisions of this Deed, unless such guidelines, policies, codes of practice, operating rules, procedures or written requirements expressly state otherwise;
(g) must comply with, and must provide all necessary assistance to the Practice to ensure that it complies with, the obligations of the Practice under the Corporate Authorised Representative Agreement where relevant to any activity the Adviser undertakes on behalf of the Licensee;
(h) must comply with the conditions of the Licensee's AFSL and all Relevant Laws and rules of professional conduct relating to any activity the Adviser undertakes on behalf of the Licensee;
(i) must keep a record of all Authorised Services provided by the Adviser (including, without limitation, a copy of any advice provided) in the Client Files;
U) must maintain and keep up to date the Client Files;
(k) must ensure that the Client Files are kept securely and safely and that any electronic files are backed up regularly.
(I) must not engage in any conduct that might render any AFSL held by the Licensee liable to be suspended, revoked or varied or cause the Licensee to breach any Relevant Laws;
(m) must perform the Authorised Services efficiently, honestly and fairly, to a high professional standard and to the best of their ability and expertise;
(n) must ensure that Clients are not disadvantaged by any conflict of interest that may arise in relation to Authorised Services engaged in by the Adviser;
(0) must not act in a way which adversely affects the reputation of the Licensee or the Licensee's related bodies corporate or directors and officers;
(p) subject to the Licensee's policies and operating rules, must notify the Practice or the Licensee immediately upon becoming aware of any complaint, claim or proceeding or threatened claim or proceeding against the Practice, the Adviser or the Licensee in relation to any Authorised Services provided by the Practice or the Adviser or any breach of this Deed by the Adviser; and
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(q) must comply with any reasonable written requirements or directions given to it from time to time by the Licensee in relation to any complaint, claim or proceeding or threatened claim or proceeding against the Practice, the Adviser or the Licensee in relation to any Authorised Services provided by the Practice or the Adviser or any breach of this Deed by the Adviser; and
(r) must complete any compliance certification required by the Licensee from time to time in relation the Adviser's role in providing the Authorised Services; and
(s) must not at any time (including after termination) assert an interest in the Client, the Client relationship or the Client Files to prevent or hinder the exercise by the Licensee of any of its rights under or in connection with this Deed or the Corporate Authorised Representative Agreement or the performance by it of any obligations required by the Relevant Laws.
5.3 Limitation of authority (a) The Adviser acknowledges that the Adviser Deed gives rise to a limited form of agency only in
relation to the provision of Financial Services and is not to be construed in any way as a relationship of employer and employee, or partnership, between the Licensee and the Adviser.
(b) The Adviser acknowledges and agrees that the Licensee is not required to make any payments to the Adviser directly for the provision of Authorised Services.
(c) The Adviser shall not provide any services that are not Authorised Services, without the prior written approval of the Licensee.
(d) In the event that the Adviser provides services other than Authorised Services, before providing the service, it must disclose to the Client in clear and prominent terms:
(i) that the services are not Authorised Services, are not provided on behalf of the Licensee and are not within the authority of the Licensee; and
(ii) where the services are Financial Services which the Adviser is authorised to provide by another AFS Licensee, that the Adviser is providing the Financial Services on behalf of an AFS Licensee other than the Licensee and the details of that AFS Licensee.
(e) The Adviser shall not describe itself in such a manner as to give the impression that they are an AFS Licensee or associate themselves with or use a business name which gives the impression that they are an AFS Licensee.
(f) The Adviser is not authorised to, and must not, act on behalf of the Licensee or as the Licensee's agent when carrying out any services which are not Authorised Services and must not directly or indirectly imply, represent, hold out or permit to be held out to any person (including a Client) that they can do so.
(g) The Adviser must not bind, by written or oral conduct, the Licensee or a Product Provider in any way (including by entering into contracts of insurance or making any purchase on behalf of or in any way pledging the credit of the Licensee or any Product Provider), except as expressly advised by the Licensee in writing from time to time.
(h) The Adviser must not make any unauthorised representations or warranties on behalf of the Licensee or represent that the Adviser is an employee of the Licensee.
(i) The Adviser must not engage in any act or omission in relation to this Deed or the Practice Business that is dishonest, fraudulent, malicious or criminal.
U) The Adviser must not modify the Licensee's policies, documents, forms or other material without the Licensee's prior written consent.
(k) The Adviser must not contact ASIC or any other regulatory body having authority in respect of the Authorised Services provided by the Practice or the Adviser except:
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(i) in circumstances set out in any written requirements or directions received from the Licensee from time to time; or
(ii) if the Practice is under a legal obligation to do so; or
(iii) with the Licensee's prior written consent.
If the Adviser intends to contact ASIC or any other regulatory body having authority in respect of the Authorised Services provided by the Practice or the Adviser under this provision, the Adviser must do everything reasonably possible to inform the Licensee in advance of the reasons for doing so and the nature of the proposed contact.
5.4 Notification obligations The Adviser must notify the Licensee immediately:
(a) of any change of the Adviser's given or family name, principal business address or business name (including registered business number and State or Territory of registration);
(b) of any arrangement relating to, or change in, any authorisation provided to the Adviser by another AFS Licensee including whether:
(i) they no longer represent the other AFS Licensee;
(ii) they represent an additional AFS Licensee; or
(iii) they reasonably expect to be authorised to provide Financial Services on behalf of another AFS Licensee,
and in each case they must state the AFSL number of that AFS Licensee;
(c) of any change to the Adviser's membership of an external dispute resolution scheme;
(d) in the form requested by the Licensee from time to time, when the Adviser has breached, caused a breach or is likely to breach or cause a breach of this Deed, the Licensee's AFSL or a Relevant Law;
(e) if the Adviser becomes aware of any event that may be detrimental to the Licensee or any Representative of the Licensee or any event that may bring the Licensee's name into disrepute; or
(f) if the Adviser becomes subject to any investigation, surveillance check or enquiry by ASIC or any other regulatory body having authority in respect of the Practice or the Adviser, or the Authorised Services provided by the Adviser.
5.5 Conduct of the Adviser
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(a) The Adviser must, in the course of doing any act authorised by this Deed, only provide recommendations to Clients regarding, and assist Clients to use or invest in, products on the Approved Product List, unless prior written approval is obtained from the Licensee.
(b) Unless otherwise instructed in writing by the Licensee, the Adviser shall display on any written material and disclose to Clients the following information when providing any document in connection with the provision of any Authorised Services by the Adviser:
(i) the name, business address, contact details and Authorised Representative Number of the Adviser;
(ii) the fact that the Adviser is authorised by the Licensee to provide Financial Services on its behalf;
(iii) the name, business address and ABN or ACN of the Licensee and its AFSL number;
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(v) any other matters required by Relevant Laws.
(c) The Adviser's use of the Business Tools and Services is subject to, and the Adviser agrees to comply with the terms and conditions relating to the Business Tools and Services (including in relation to access and use of those Business Tools and Services) as set out in the Corporate Authorised Representative Agreement or as otherwise notified by the Licensee and/or the third party providers of the Business Tools and Services to the Practice from time to time. These terms and conditions may be notified to the Practice on or via the Licensee's adviser services website or by other means. If the Adviser does not comply with the terms and conditions in relation to a particular Business Tool or Service, the Licensee may cancel the Adviser's access to that Business Tool or Service.
(d) The Adviser shall use its best endeavours to place all business under the Authorised Services which is in the nature of acquisitions of products on the Approved Product List with the Licensee or as otherwise directed by the Licensee.
(e) The Adviser shall use its best endeavours to promote, extend and protect the business and reputation of the Licensee.
(f) The Adviser must not issue promotional statements, advertise or make representations or warranties about the Licensee, other than as authorised by the Licensee in writing.
(g) The Adviser must not act for a Client who the Practice did not introduce to the Licensee, without the prior written approval of the Licensee.
(h) The Adviser shall ensure that all funds provided to the Adviser by a Client that are intended by the Client to be paid to a Product Provider are in such form as approved by the Licensee, and the Adviser shall deliver all such funds, directly and without any deduction to the relevant Product Provider.
(i) Except where expressly permitted in writing by the Licensee, the Adviser shall not accept, receive, hold on trust or in any way take possession, custody or control of financial products, money or other property of or belonging to (or loaned to) Clients other than:
(i) a cheque that is payable to, or to the order of, a specified person or bearer (not being the Practice, the Adviser, a member of the Practice's personnel or any other Representative of the Licensee) and which the Practice or the Adviser receives from, or on behalf of, a Client with express or implied instructions that it is to be delivered to the person to whom it is payable; or
(ii) money received in respect of brokerage or any other proper charge due to the Practice or the Adviser in the ordinary course of their business.
U) Except where expressly permitted in writing by the Licensee, the Adviser shall not hold a power of attorney to act on behalf of Clients.
(k) The Adviser shall not withhold any material or information from the Licensee or any other person, where doing so could give rise to a claim for loss or damage by a Client.
(I) The Adviser must not conduct any other form of business, other than the business of providing the Authorised Services, unless the Licensee has provided its prior written approval and that other form of business meets the Licensee's requirements relating to separation of business, as notified by the Licensee to the Practice from time to time.
(m) Any portion of monies collected by the Adviser from the Licensee or a Product Provider, which is due or payable by the Licensee or the Product Provider to a Client, is the property of the Client.
(n) The Adviser must comply with the Dispute Resolution System.
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(0) The Adviser must provide a copy of the Adviser Authorisation to anyone who asks for it free of charge as soon as possible, and any in event within 10 Business Days, after receiving their request.
5.6 Confidential information (a) Except as required by law, this Deed or the Licensee, the Adviser must:
(i) keep secret and confidential all Client Files and any information relating to the Licensee, its business, products, processes, trade and business secrets, customers, related bodies corporate, associates, business partners and suppliers which is or might reasonably be considered by the Licensee to be confidential and the terms of this Deed (Confidential Information); and
(ii) not, either during or at any time after the termination of this Deed, disclose, nor allow a third party to disclose, to any person any Confidential Information or use any Confidential Information for its own advantage without the prior written consent of the Licensee.
The requirements of this clause 5.6 do not apply where the information is public knowledge (but not because of a breach of this Deed) or the party has independently created the information.
(b) The Adviser must immediately upon termination of this Deed, or on demand, deliver up to the Licensee all material comprising or containing Confidential Information (including all copies thereof) and all other property of the Licensee which may then be in its possession or under its control.
(c) If the Adviser or Practice fails to deliver all Confidential Information to the Licensee, the Adviser irrevocably authorises the Licensee, its directors, employees and agents to enter any premises occupied by the Adviser for the purposes of recovering any Confidential Information and to enter any other premises where the Adviser has stored such Confidential Information and, provided the Licensee has acted reasonably and with due care, no claim or demand for any loss or damage allegedly arising from the recovery of such Confidential Information shall be made.
(d) All lists including details of Clients and Client Files are secret and confidential and are to be kept by the Adviser in a safe and secure manner at all times.
(e) All lists including details of Clients and Client Files are not to be used by the Adviser during the term of this Deed for any purposes other than those specifically relating to the Practice Business.
5.7 Intellectual property
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(a) The Adviser agrees and acknowledges that the Licensee retains all right, title and interest in the Licensee's trade marks and that all goodwill pertaining to those trade marks remains with the Licensee. Nothing in this Deed will be construed as giving to the Adviser or the Practice any interest, goodwill or intellectual property rights in those trade marks or in any software or printed or electronic material provided or arranged to be provided by the Licensee or the Practice and any intellectual property rights in those materials will reside with the Licensee or other owner of those rights.
(b)
(c)
(d)
Any trade mark belonging to the Licensee which is used by the Adviser under this Deed must only be used in accordance with this Deed and with the Licensee's authority and approval.
The Licensee licenses the Adviser to use software, systems and procedures developed by the Licensee, or for the Licensee's benefit, for any purpose in the performance of the obligations of the Adviser under this Deed, provided such use is strictly in accordance with the Licensee's directions and any user specifications provided by the Licensee to the Adviser.
Where the Licensee, in accordance with the terms of any licensing or user agreement between the Licensee and the supplier, allows the Adviser to use software provided by that supplier, the Adviser agrees to ensure that:
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(i) any such use of the software will be restricted to the rights which the software supplier allows the user to enjoy;
(ii) any such use will at all times be subject to the terms of the licensing or user agreement between the Licensee and the software supplier; and
(iii) the software will only be used in accordance with the Licensee's and the supplier's instructions.
(e) The Adviser agrees that, in respect of software that the Adviser is licensed or permitted to use under clauses S.7(c) and (d):
(i) the software will only be used in connection with the provision of an Authorised Service or this Deed;
(ii) no part of the software will be modified, copied, reproduced, disassembled, decompiled, reverse assembled, or reverse engineered;
(iii) the software will be kept safe and there will be no unauthorised access to and use of the software; and
(iv) any defects in the software will be promptly reported to the Licensee.
(f) The Licensee may terminate the Adviser's right to use any software provide by a third party supplier at any time by not less than 14 days written notice to the Adviser. It is agreed between the parties that there may be circumstances where providing 14 days' written notice is not possible and in such circumstances, the Licensee may, acting reasonably, give the Practice less than 14 days' notice in order to protect its legitimate interests. This may include, but is not limited to, circumstances in which a third party supplier becomes insolvent, or enforces a right of immediate termination.
5.8 Other property
All records, certificates, papers, literature, mailing lists, receipts, duplicates of any document, computer files directory and telephone book listings, telephone numbers and all other materials supplied by the Licensee to the Adviser or the Practice remain the property of the Licensee, and must be made available for inspection by the Licensee within a reasonable time as specified by the Licensee.
5.9 The Licensee's Right to Inspect and Audit
14
During the term of this Deed, following termination of this Deed and as otherwise required by law, the Adviser must:
(a) provide any Client Files requested by the Licensee or any person nominated by the Licensee to the Licensee or any person nominated by the Licensee within 48 hours of receipt of a written request for such files, by providing either the original Client Files or complete and legible copies of the Client Files;
(b) allow the Licensee, any person nominated by the Licensee or any regulatory body including ASIC (including their employees or agents):
(i)
(ii)
(iii)
to contact Clients for the purpose of assessing compliance with this Deed, the Corporate Authorised Representative Agreement and Relevant Laws;
to conduct an inspection of Client Files, accounts, bank statements and all other relevant financial and other records of the Adviser for compliance with this Deed (or for any other reasonable purpose determined by the Licensee) upon giving not less than 24 hours prior notice to the Adviser;
to enter and inspect any place of business of the Adviser at reasonable times and to take copies or extracts of any of the Adviser's records relating to any Authorised Service
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provided by the Adviser or any other activity undertaken on behalf of the Licensee or the Practice (Relevant Activities);
(c) co-operate with and provide the Licensee, any person nominated by the Licensee and any regulatory body including ASIC (including their employees or agents) with any information and copies or extracts of any of the Adviser's documents that the Licensee, any person nominated by the Licensee or a regulatory body considers may relate to any of the Relevant Activities and any assistance necessary for any such action; and
(d) undertake any remedial action or implement any remedial training programs reasonably required and within any applicable timeframes notified by the Licensee as a result of an inspection, audit or review under this clause 5.9.
5.10 Incoming Transfer Agreement
If the Licensee enters into an Incoming Transfer Agreement:
(a) the Adviser must comply with any obligations it has under or in connection with the Incoming Transfer Agreement and any direction by the Licensee in connection with the Incoming Transfer Agreement; and
(b) the Adviser indemnifies, and must keep indemnified, the Licensee from and against all and any charges, claims, costs, losses, expenses and liabilities suffered or incurred by the Licensee in connection with the Incoming Transfer Agreement.
5.11 Reference checking arrangement (a) During the term of this Deed, and following the termination of this Deed, the Adviser
acknowledges and agrees to the Licensee providing any information or documents to participants of the Protocol, in connection with the activities, advice or performance of an Adviser, the Authorised Services or the Practice.
(b) The Adviser agrees to release the Licensee from all liability in connection with any information or documents disclosed to participants of the Protocol in good faith pursuant to this clause 5.11.
6. Practice's obligations 6.1 Compliance by the Adviser
The Practice shall use its best endeavours to ensure that the Adviser complies with this Deed, the Corporate Authorised Representative Agreement, the conditions of the Licensee's AFSL and all Relevant Laws and rules of professional conduct relating to the Authorised Services they provide.
6.2 Partnership
15
If the Practice is a partnership:
(a) unless the context otherwise requires, each reference to the Practice in this Deed is taken to apply to each Partner, binding them jointly and severally to the terms of this Deed such that:
(i) each obligation imposed on the Practice by this Deed is an obligation imposed jointly and severally on each Partner; and
(ii) each right conferred on the Practice by this Deed is a right conferred jointly and severally on each Partner.
(b) the Parties acknowledge the composition of the partnership making up the Practice may change from time to time as a result of:
(i)
(ii)
the admission of Partners; and/or
the retirement of Partners;
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(c) upon the admission of any new partners to the Practice, the new partner will be bound by the terms of this Deed;
(d) if required by a Party, a new partner of the Practice must execute a deed agreeing to be bound by the terms of this Deed; and
(e) the Practice warrants and continues to warrant throughout the term of this Deed that:
(i) the Practice has full legal power and capacity to enter into this Deed; and
(ii) all conditions required by any partnership agreement or other applicable law have been fulfilled in order to enable the Practice to lawfully enter into, exercise its rights and perform its obligations under this Deed.
7. Clients The Parties acknowledge and agree that if the Licensee reasonably suspects fraud, negligence or a serious contravention of any Relevant Law by the Practice or the Adviser, or if the Licensee reasonably believes that it may be required by law to compensate Clients for past or future acts or omissions of the Practice or the Adviser and reasonably believes that it needs to take action to minimise that potential compensation, the Licensee may (but is not required to):
(a) immediately take possession and control of Client Files and the provision of Financial Services under the Licensee's AFSL, including by delivering the Client Files and transferring Clients to another adviser; and/or
(b) inform ASIC of any conduct of the Practice or the Adviser that breaches any Relevant Law;
and the Advisers must comply with any direction given by the Licensee in relation to this clause 7.
8. Indemnity The Adviser will indemnify and keep indemnified the Licensee, its related bodies corporate and its directors, officers, employees, contractors, representatives and agents from and against all and any charges, claims, costs, losses, damages, expenses and liabilities that arise directly or indirectly from the Adviser acting as Representative of another AFS Licensee or any Authorised Services provided by the Adviser, including:
(a) any negligent act or omission of the Adviser in the course of carrying out activities pursuant to this Deed;
(b) any act or omission of the Adviser in breach of this Deed;
(c) any conduct of the Adviser for which the Licensee is responsible under the Relevant Laws or otherwise; or
(d) any matter referred by a Client to an external dispute resolution scheme or professional body in relation to an act or omission of the Adviser in the course of carrying out activities pursuant to this Deed.
9. Insurance (a)
(b)
16
The Adviser must notify the Licensee immediately if it becomes aware of any claim or circumstances that may result in a claim under any insurance maintained by the Licensee or the Practice.
The Adviser irrevocably authorises the Licensee to notify the provider of an insurance policy maintained by the Licensee of any claim or circumstances that may result in a claim under that insurance and to respond to any subsequent enquiries by the insurer in relation to such notification. Nothing in this clause imposes an obligation on the Licensee to notify claims or circumstances to the insurer (whether on behalf of the Adviser or otherwise) or relieves the
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Adviser from any obligation that they may have to the insurer. The Adviser indemnifies and holds the Licensee harmless from and against any loss or claim suffered or incurred by the Licensee as a result of any act or omission by the Adviser contemplated by this clause; and
(c) The Adviser holds its rights under any insurance policy arranged by the Practice or Licensee, and the proceeds of any insurance claim, on trust for the Licensee to the extent that the Licensee has a claim against the Adviser in accordance with this Deed.
10. Not used
11 . Termination 11.1 Term
This Deed shall commence on the Commencement Date and continue until terminated in accordance with clauses 11.2,11.3,11.4,11.5,11.6 or 11.7
11.2 Termination by the Adviser or the Practice for breach
The Adviser or Practice may terminate this Deed immediately by written notice to the other parties if:
(a) the Licensee commits a material breach of this Deed and, if capable of remedy, it is not remedied within 14 days after written notice is given to the Licensee to so do;
(b) the Licensee ceases to carry on business;
(c) the Licensee is Insolvent, or there is a reasonable belief that the Licensee is Insolvent; or
(d) the Licensee is banned or disqualified under the Relevant Laws.
11.3 Termination by the Licensee for breach
The Licensee may terminate this Deed immediately by written notice to the Adviser if:
(a) the Adviser commits a material breach of this Deed and, if capable of remedy, it is not remedied within 14 days after written notice is given to the Adviser to do so;
(b) the Adviser acts in a manner likely to damage the brand or reputation of the Licensee;
(c) the Licensee reasonably suspects fraud, negligence or a serious contravention of any Relevant Law by the Practice or the Adviser;
(d) the Licensee reasonably believes that it may be required by law to compensate Clients for past acts or omissions of the Practice or the Adviser;
(e) the Adviser ceases to carry on business;
(f) the Adviser is Insolvent, or there is a reasonable belief that the Adviser is Insolvent;
(g) the Adviser is banned or disqualified under the Relevant Laws; or
(h) the Licensee reasonably believes that it needs to terminate this Deed pursuant to section 916A(4) of the Corporations Act to meet its obligations under the Relevant Laws.
11.4 Termination by the Adviser or Practice
Either the Adviser or Practice may terminate this Deed by 90 days written notice to the other parties.
11.5 Termination by the Adviser following notification of variation
17
Where the Licensee has provided written notification to the Adviser of its intention to vary the terms of this Deed in accordance with clause 14.7, the Adviser may terminate this Deed by 30 days' written notice to the Licensee provided that:
(a)
(b)
the Adviser has paid or made reasonable provision to pay all amounts owing the Licensee; and
the Adviser is not in breach or default of any of its obligations under this Deed.
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11.6 Termination of the Corporate Authorised Representative Agreement
This Deed will terminate immediately on termination of the Corporate Authorised Representative Agreement.
11.7 Termination of relationship with the Practice
(a) This Deed will terminate immediately if the Adviser ceases to be a director, officer, Partner, employee or contractor of the Practice or ceases to be associated with the Practice through any other relationship or arrangement (unless the Licensee has provided its prior written consent to this occurrence).
(b) On termination of this Deed under clause 11.7(a), the Practice must give written notice to the Licensee and Adviser as soon as practicable and, in any event, no later than 3 Business Days after termination.
11.8 Termination obligations On termination of this Deed, the Licensee will revoke the Adviser Authorisation and the Adviser will cease to be authorised to act for or by arrangement with the Licensee. The Practice must:
(a) notify each Client in writing in a form approved by, or in a form specified by, the Licensee (or, at the Licensee's election, the Licensee may itself send such notification) that the Adviser has ceased to be a Representative of the Licensee and is no longer authorised by the Licensee to provide any Authorised Services, and the Practice must provide confirmation of each such notification to the Licensee; and
(b) not act in a manner that would cause any person to believe that Adviser has a continuing relationship or association with the Licensee.
11.9 Restrictions following termination
18
(a) The Adviser covenants that it will not, either directly or indirectly, jointly or with any other person, by any means whatsoever, intentionally do, or endeavour to do, any of the following in the Restraint Area during the Restraint Period:
(b)
(c)
(i) contact any person who was a client of the Licensee or an Associate of the Licensee during the final 12 months of the Term (or such lesser period if applicable) (Licensee Client) and with whom the Adviser or the Practice had contact of any business-related type, for the purpose of providing Authorised Services;
(ii) solicit, interfere with, or entice away from the Licensee or an Associate of the Licensee any person who was a Licensee Client with whom the Adviser or the Practice had contact of any business-related type, or induce any such client to terminate, reduce or vary their business with the Licensee or an Associate of the Licensee; or
(iii) solicit, interfere with, or entice away from, the Licensee or an Associate of the Licensee any person who was an employee, contractor, Representative or adviser of the Licensee or an Associate of the Licensee during the final 12 months of the Term (or such lesser period if applicable).
The restraints in clause 11.9(a) shall not apply in respect of Transferred Clients transferred under clause 12.8 of the Corporate Authorised Representative Agreement or to any other Clients that the Practice and Adviser have agreed that the Adviser may transfer to an AFS Licensee of which the Adviser will be a Representative after termination.
The Adviser acknowledges and agrees, having regard to the nature and extent of the benefit which the Adviser obtains from the Licensee and the Practice by entering into this Deed, that the provisions of this clause 11.9 are reasonable and reasonably necessary for the protection of the business, Confidential Information and goodwill of the Licensee and the Practice and do not preclude the Adviser from earning a livelihood and shall survive termination of this Deed.
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(d) The restraints set out in this Deed apply despite any default by any party of any provision of this Deed.
11.10 Return of property on termination
On termination of this Deed, the Advisers must return the Adviser Authorisation, all documents, information, records or other material in the Adviser's possession or control (except that the Adviser may retain copies of such documents, information and records, if required by law) obtained in relation to, from or through the Adviser's association with the Licensee and all promotional material and computer software to the Licensee within five Business Days of the Adviser being notified by the Licensee that the Deed has been terminated or such other period as the Licensee may specify in writing.
11.11 Client Files after termination
The Adviser shall:
(a) maintain all Client Files for a period of not less than 7 years after the termination of this Deed; and
(b) make such Client Files available to the Licensee upon request.
11.12 Accrued rights
Termination of this Deed does not affect the accrued rights and remedies of either Party.
11.13 Survival Any provision of this Deed that is expressed to or which by its nature is intended to survive the termination of this Deed will survive the termination of this Deed and without limiting the foregoing, this clause 11.13 and clauses 5.6,5.7,5.8,5.9,8,11.8,11.9,11.10,11.11,11.12,12, 13 and 14 will survive termination of this Deed.
12. SpedalCond~ons
The parties acknowledge and agree that this Deed takes effect subject to any special conditions contained in Schedule 2.
13. Dispute resolution (a) Each Party agrees not to commence arbitration or court proceedings (except proceedings
seeking interlocutory relief) in respect of any dispute relating to this Deed unless it has first complied with the dispute resolution procedure in this clause 13.
(b) The dispute resolution procedure is as follows:
(i) the Party claiming that a dispute has arisen must notify the other Parties as soon as it becomes aware of the disputed circumstance or event;
(ii) within 5 Business Days after notice is given under paragraph (i), each Party must nominate in writing to the other Parties a representative authorised to settle the dispute on its behalf to attempt to resolve the dispute;
(iii) during the 15 Business Days after notice is given under paragraph (i) or, if the Parties agree in writing to a longer period, that longer period, each Party's representative must use his or her best efforts to resolve the dispute within that period;
(iv) in the event that the Parties cannot resolve any dispute by the application of the proceeding paragraphs, the dispute will be referred to an independent mediator as agreed by the Parties, or failing agreement, nominated by the Australian Commercial Disputes Centre (ACOC), in which case, the mediation must be conducted in accordance with the ACDC Mediation Guidelines; and
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(v) the Parties will thereafter use their best endeavours, acting with the appointed mediator, to resolve the dispute within a period of 10 Business Days after referral to the appointed mediator.
(c) The costs of the appointment of the mediator, and of determination of the dispute, will be shared equally between the Parties.
14. Miscellaneous 14.1 Costs and stamp duty
(a) Each Party shall bear its own legal and other costs and expenses in relation to the preparation and execution of this Deed, including all legal costs and expenses.
(b) The Adviser shall pay the stamp duty (if any) on this Deed.
14.2 Notice A notice, demand, consent or authority (Notice) as between the Licensee and Adviser given or made to a person must be:
(a) in writing;
(b) given or made by:
(i) delivering it to that person personally;
(ii) addressing it to that person and either leaving it at, or posting it to, the address of that person appearing in this Deed or any other address nominated by that person by notice to the person giving the Notice; or
(iii) sending a facsimile copy of the Notice to the facsimile number nominated by that person by notice to the person giving the Notice; or
(iv) for Notices by the Licensee to the Adviser only - sending an email of the Notice to the email address of the Adviser appearing in this Deed, or any other email address nominated by the Adviser by notice to the Licensee; and
(c) will be deemed to be given or made:
(i) if by leaving it at the address of that person, when left at that address;
(ii) if by post, on the second Business Day following the date of posting; and
(iii) if by:
(A) facsimile, on receipt by the sender of a transmission confirmation that the facsimile has been delivered to the recipient's facsimile number; or
(B) email, when sent, unless the sender's machine receives a delivery failure notice,
provided that if the facsimile or email is delivered or sent on a day other than a Business Day or after 5pm on a Business Day, Notice will be deemed to be given or made on the following Business Day.
14.3 Proper law and jurisdiction This Deed is governed by and shall be interpreted in accordance with the laws in force in the state of New South Wales and the Parties agree to submit to the non-exclusive jurisdiction of the courts of that State and the courts competent to determine appeals from those courts.
14.4 Entire Agreement
20
This Deed (together with the Corporate Authorised Representative Agreement) constitutes the whole agreement between the Parties with respect to the subject matter of this Deed and supersedes all other written or oral agreements between the Parties that deal with the subject matter of this Deed.
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14.5 Representations Each Party acknowledges that, except as expressly stated in this Deed and in any application form provided by the Adviser to the Licensee in respect of this Deed, that Party has not relied on any representation, warranty or undertaking of any kind made by or on behalf of another Party in relation to the subject matter of this Deed.
14.6 Further assurances The Parties shall execute and do all acts and things necessary or desirable to implement and give full effect to the provisions and purpose of this Deed.
14.7 Variation This Deed may be varied by written agreement between the parties or the Licensee on 30 days' written notice to the Adviser and the Practice.
14.8 Assignment The Adviser may only assign this Deed or a right under this Deed with the prior written consent of the Licensee. The Licensee may sell, transfer, assign or otherwise dispose of the Licensee Business and may at any time assign this Deed or a right under this Deed by written notice to the Adviser.
14.9 Waiver A party does not waive a right, power or remedy under this Deed if it fails to exercise or delays in exercising the right, power or remedy. A single or partial exercise of a right, power or remedy does not prevent another or further exercise of that or another right, power or remedy. A waiver of a right, power or remedy must be in writing and signed by the party giving the waiver. A party is not liable for loss caused by the exercise of attempted exercise of, failure to exercise, or delay in exercising, a right, power or remedy.
14.10 Remedies cumulative The rights, powers and remedies provided under this Deed are in addition to other rights, powers and remedies available under the law independently of this Deed.
14.11 Acknowledgement by the Adviser
21
The Adviser acknowledges that the Adviser has had a reasonable opportunity to receive independent legal and financial advice in relation to its obligations under this Deed.
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WBC.502.003.0122
Item 1: Practice:
Name of person or entity:
Principal Business Address:
State: Postcode:
ABN (if any):
Business Name (if any):
Business Name Registration Number and State (if applicable):
Office phone number:
Office facsimile number:
After hours number:
Designated Contact:
Commencement Date:
[If the Practice is a partnership]
Partner details
Name Address
1
2
3
Item 2: Adviser Details
Name of person:
Residential Address:
State: Postcode:
After hours number:
Email address:
Date of birth:
Approved external dispute resolution scheme (if applicable):
Membership number (if any) of approved external dispute resolution scheme (if applicable):
Item 3: Commencement date: -----------------------
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Schedule 2- Special Conditions
This Deed takes effect subject to the following special conditions.
[Include / remove as appropriate.]
1. The Practice shall be appointed as an authorised representative under the Licensee's AFSL.
2. The Authorised Services are limited to in respect of financial services: [Select as appropriate] [Please delete if you are providing authorisations under an Accountant's Limited Offer]
23
(a) the provision of financial product advice and dealing in relation to:
(i) basic and non-basic deposit products;
(ii) derivatives;
(iii) life products;
(iv) interests in managed investment schemes including investor directed portfolio services;
(v) retirement savings account products;
(vi) securities;
(vii) standard margin lending facilities;
(viii) superannuation;
(b) the provision of strategic and structural advice to self managed superannuation funds;
(c) the provision of advice in relation to life insurance, including insurance within superannuation, and the implementation of the insurance recommendations.
[Insert any other limitations on the Authorised Services.]
[Insert for an Accountant's Limited Offer only: ~uthorisations to be confirmed] The Authorised Services are limited to the provision of financial product advice in relation to:
(b)
establishing (including assist with the re aration of investment strate y.1.ct....;;;;;..;........;..;..;..;...;.=.;..; ...
a self-managed su erannuation fund"
basic deQosit Qroducts;
(c ),-----,,-s...J,;.uQerannuation contribution
d ensions strate
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Signing page
Executed for and on behalf of Securitor Financial Group Ltd ABN 48 009 189 495 under power of attorney:
Signature of Witness
Name of Witness (print)
Signed sealed and delivered by [Adviser] ABN [ABN] in the presence of
Signature of Witness
Name of Witness (print)
[If the Practice is a body corporate]
Executed by [Practice] ABN [ABN] in accordance with Section 127 of the Corporations Act 2001:
Signature of Director
Name of Director (print)
24
Signature of Attorney
Name of Attorney (print) / Tier
Signature of Adviser
Name of Adviser (print)
Signature of Director/Company Secretary (Please delete as applicable)
Name of Director/Company Secretary (print)
WBC.502.003.0124
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[If the Practice is a natural person]
Signed by [Practice] in the presence of:
Signature of witness
Name of witness (please print)
[If the Practice is a partnership] Signed for and on behalf of [partnership name] by:
I Name I Signed
Print name Signature
Print name Signature
Print name Signature
25
WBC.502.003.0125
Signature
in the presence of: I
Signature of witness
Name of witness
Signature of witness
Name of witness
Signature of witness
Name of witness
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For more information securitor
securitor.com.au (j 1300 553 687 [:s::J [email protected]