Terms and Conditions of Business

1. Introduction

Capital Guard AU Pty Ltd is registered and authorised under the Australian Securities and Investments Commission. These Terms set out the basis on which Capital Guard provides financial products and services. References to we, us, the company or Capital Guard are references to Capital Guard AU Pty Ltd.

• These Terms include the schedules that apply to the services or products you use.
• Your Account is governed by these Terms as amended from time to time.
• To open an Account you must complete an application. We may accept or decline any product or service you select.
• These Terms apply from acceptance of your application, our agreement to provide a service, or when you first place an order.
• You confirm you have read these Terms, the relevant Product Disclosure Statements, and the Financial Services Guide.
• Dealings are subject to Applicable Laws. We do not provide legal, tax, financial or accounting advice and we do not act in a fiduciary capacity except where expressly stated.

2. Our Services

Subject to approval of your application, we maintain your account and provide investing services for equities and fixed income securities. All contracts between you and us are governed by these Terms. Electronic execution is permitted and binding.

3. Amendments

These Terms replace previous versions and take effect from the specified date or the date you start doing business with us.

4. Terms and Definitions

The following definitions apply.

4.1 Interpretation

• Headings are for convenience only.
• Singular includes plural and vice versa.
• References to a person include companies, partnerships and government agencies.
• References to an Act include regulations and amendments.
• Dollar references are Australian dollars.
• If an action falls on a non Business Day, it is due on the next Business Day.

5. Agreement and Appointment

5.1 Agreement and Effectiveness

This Agreement begins on the Effective Date and continues until terminated in line with these Terms.

5.2 Custodian

You appoint Capital Guard to provide Services and, where applicable, appoint Agents or Sub custodians that meet regulatory requirements. Beneficial ownership of Client’s Assets remains with you.

5.3 Authorised Persons

You may authorise others to act on your behalf. You are responsible for their acts and omissions. We may rely on instructions that appear to come from an Authorised Person.

5.4 Conflicts of Interest

We or related entities may have interests in transactions and may act for other clients. We apply a conflicts policy and independence requirements.

6. Services and Operations

6.1 Responsibilities

• Provide custody or appoint a Sub custodian and hold assets on bare trust.
• Keep Client’s Assets separate or pooled with records that identify your interests.
• Credit income and distributions to your account.
• Act on Proper Instructions and keep required records and reports.
• Comply with Applicable Law and act with reasonable care.

6.2 Proper Instructions — Clarifications and Actions

• Capital Guard will notify the issuer of the Proper Instructions, where permitted by law, if it cannot fully comply and explain why.
• Before executing instructions that appear ambiguous, contain a manifest error, or conflict with earlier instructions (unless a later priority applies), Capital Guard will take reasonable steps to inform you and seek clarification.
• Where clarification is reasonably required, Capital Guard is not liable for loss caused by reasonable delay while:
  • requesting clarification promptly; and
  • using reasonable efforts to minimise delay.
• Cancellation or superseding instructions must be received in time and in a manner that allows reasonable opportunity to act.
• Capital Guard or its Agent may take actions reasonably necessary or incidental to executing Proper Instructions.

6.3 Authority

• Open and maintain bank accounts; appoint Agents or Sub custodians; enter foreign exchange where required for settlement.
• Deduct amounts from Client’s Assets to meet obligations under this Agreement.

6.4 Quality Standards and Not Liable

To the extent permitted by law, obligations implied by law are excluded except honesty, good faith, and reasonable care. We are not responsible for title, suitability, or investment advice regarding Client’s Assets unless required by these Terms.

6.5 Contracts and Conflicts

We may deal as principal or agent and are not required to account to you for income arising from such dealings, subject to law and our policies.

6.6 Bank Accounts and Funds

• Retail client money may be held in trust and transferred between trust and retail accounts to settle transactions.
• You must ensure cleared funds are available. We are not obliged to complete a transaction without cleared funds.

6.7 Internal Controls and Compliance

We maintain segregation, controls, compliance systems and independent review. Reports may be provided to you or regulators as required.

6.8 Force Majeure

If a Force Majeure Event occurs we will notify you, activate our continuity plan and aim to minimise disruption. If services cannot resume within 20 Business Days you may terminate by written notice.

6.9 Reporting and Insurance

• Transaction notices, monthly holdings and annual summaries are provided. Seek tax advice on adequacy for your obligations.
• We maintain insurance at levels required by regulation or market practice.

6.10 Authenticated Communications

• A communication is authenticated if verified via a system test mechanism or a test key, smart card or other security issued by Capital Guard with written acknowledgement.
• Capital Guard is indemnified and has no liability for actions taken in reliance on transmissions that include correct security codes or keys and that it reasonably believes are from the Client, including instructions that appear to be Proper Instructions.
• The Client must take reasonable measures to protect any codes, passwords, test keys or other security devices provided.

6.11 Receipt of Instructions

Upon receiving Proper Instructions, Capital Guard will process them directly or ensure its Agent uses reasonable efforts to process as quickly as possible after receipt.

6.12 Communications Relating to Client’s Assets

• If Capital Guard receives written information regarding Client’s Assets and considers it material, it will inform the Client that the information is available and how to access it, deliver it, or grant access unless restricted by law or the issuer.
• Capital Guard does not verify the accuracy of forwarded information and makes no representations regarding completeness or any translation.
• Subject to Applicable Law, Capital Guard is not liable for not passing on information it deems not material.
• Capital Guard is not liable for losses from reliance on Notices forwarded to the Client.
• Due to potential misinterpretation of oral instructions, Capital Guard and any Sub custodian are not liable for losses arising from inadvertent misinterpretation of oral Proper Instructions.

6.13 Limitation of Liability (Timing)

Capital Guard is not liable for delays in exercising rights or powers related to a Client Asset unless it has received Proper Instructions and the Sub custodian has actual possession of those assets at least three Business Days before the exercise date.

7A. Encumbrances Over Client’s Assets

7A.1 No Encumbrances

Subject to permitted recovery of expenses and Applicable Law, Capital Guard must not place a charge, mortgage, lien or other encumbrance over Client’s Assets.

7A.2 Lien and Right of Set Off

• Capital Guard maintains a continuous lien over Client’s Assets and may exercise a right of set off against Client’s Assets for unpaid expenses or other amounts due under this Agreement, subject to AFSL conditions that might prohibit such lien or set off.

7A.3 Authority

Capital Guard may take actions in the Client’s name reasonably necessary to exercise the lien and set off rights.

7. Anti Money Laundering and Sanctions

We comply with AML and counter terrorism financing laws. We may delay, block or refuse payments or dealings if we suspect a breach of law or sanctions. You must provide information we reasonably require and consent to lawful disclosures to AUSTRAC and other authorities.

8. Agents

8.1 Appointment by Capital Guard

With your prior written consent (not unreasonably withheld or delayed), Capital Guard may appoint and use Agents, including Related Entities.

8.2 Delegation

Capital Guard may delegate duties and powers to an Agent or appoint a Sub custodian to perform duties with powers including delegation.

8.3 Sub custodian

• You acknowledge Capital Guard has appointed a Sub custodian to hold Client’s Assets without your express consent and may appoint others without further consent.

8.4 Responsibility for Agents

• For Related Entity Agents, Capital Guard is responsible as for its own actions.
• For Non Related Entities, Capital Guard is not liable for solvency, acts or omissions. On reasonable request, Capital Guard will make available rights against such entities or take reasonable steps to recover losses, with recovered funds paid to the Client less costs, and with appropriate indemnity from the Client.
• Capital Guard will prudently select and monitor Agents, manage remuneration, and may terminate appointments. Written terms will address issues in this Agreement including liability.
• Capital Guard will give written notice of termination or replacement of a Sub custodian that holds Client’s Assets. Capital Guard is not liable for losses from a Sub custodian’s insolvency.

8.5 Securities Depositaries and Clearing Agencies

• You authorise Capital Guard and Sub custodians to deposit Client’s Assets with a Securities System. Such systems are not Agents of Capital Guard. Capital Guard is not liable for their solvency, acts or omissions, but will make available any rights it or Sub custodians may have against them when reasonably requested.

9. Orders and Market Conduct

• We execute your orders as principal and may refuse or limit orders. We may cancel or amend orders where required by law, market conditions, trading halts, errors, or exchange directives.
• You must not instruct unlawful market conduct including manipulation, insider trading, short selling where prohibited, disorderly trading or misleading conduct.
• Orders remain open until cancelled or purged by the online service. You are responsible for updating codes on identifier changes.

10. Exceptional Events

Exceptional Events may affect availability or speed of services. We may limit instructions, adjust hours, close positions, or cancel affected orders. We are not liable for resulting losses except where caused by our negligence or breach. We will use reasonable efforts to resume normal performance.

11. Default

If a Default occurs we may cancel open orders, settle or cancel transactions, apply funds by set off, terminate your account or enforce security. Amounts owing may be converted to Australian dollars and declared immediately due.

12. Fees and Expenses

12.1 Fees

• No separate fees or expenses are currently payable for the Services.
• Capital Guard may introduce fees and recover expenses with 60 days’ written notice. If you do not accept, you may terminate within the notice period.

12.2 Payment of Fees

Fees are payable monthly in arrears within 14 days after month end.

12.3 Interest on Fees

Overdue amounts may attract interest daily at a rate determined by Capital Guard, compounded every seven days, payable on demand.

12.4 Debit Authority

Capital Guard may request fee payment by direct debit from the Client’s Bank Account.

12.5 Expenses and Outlays

• Amounts up to $1,000 may be recovered by direct debit without explicit per payment authorisation (excluding Retail Account).
• Amounts over $1,000 are invoiced and payable within 30 days.

12.6 Information

On request, Capital Guard will provide current fees, expenses and outlays information.

12.7 GST

• Consideration excludes GST. If a supply is taxable, consideration increases by GST and is payable at the same time as the original amount or within 7 days of a written demand if already paid.
• Adjustments will be invoiced or refunded with an adjustment note or tax invoice within required time frames.
• Reimbursable amounts exclude GST to the extent an input tax credit is available.

13. Termination and Refunds

13.1 Termination

• Either party may terminate on 60 days’ written notice.
• Immediate termination by the Client is permitted for fraud relating to Client’s Assets, AFSL suspension or cancellation, a Default, Force Majeure continuation per clause 6.8, or rejection of a variation under clause 20.3.
• Termination does not affect outstanding obligations, limitations of liability, indemnities, or clauses that survive termination.
• On termination the Client will arrange alternative custody and cooperate to transfer Client’s Assets within the Transfer Period. Capital Guard will deliver assets within a reasonable time against Proper Instructions and cooperate with transfer. Services may continue during the Transfer Period, and fees/expenses apply.
• If assets remain after the Transfer Period, Capital Guard may seek court directions. Applicable duties and obligations remain in effect. Costs may be reimbursed from Client’s Assets subject to court orders.

13.2 Refunds

Eligibility

• Errors in issuance of financial products or terms, administrative errors, regulatory breach causing financial harm, unauthorised transactions due to technical or fraudulent activity, or overpayments/erroneous deductions.

Non refundable situations

• Market or performance losses, voluntary liquidation/redemption absent error or breach, late requests without justification, losses arising from the Client’s actions or non compliance.

Process

• Submit: written request by email or official correspondence with full details.
• Review: acknowledgement within 2 Business Days and review within 14 Business Days.
• Decision: written outcome; approved refunds processed within 7 Business Days via original method or agreed alternative.
• Disputes: escalate via Internal Dispute Resolution or to AFCA (afca.org.au).

14. Custody

Where applicable we arrange custody. Financial products may be registered in the name of our custodian, sub custodian or nominee and are held separate from their own assets. Reasonable administration costs may be recovered.

15. Representations and Warranties

15.1 Mutual

Each party has authority and capacity to enter into and perform this Agreement and has duly executed it, making it valid and binding.

15.2 Capital Guard

• This Agreement is valid and binding and does not breach obligations or cause default.
• Capital Guard holds an AFSL authorising Services, has necessary licences and consents, maintains disaster recovery, and has capacity, systems and access required to perform Services.
• Capital Guard will inform the Client if these statements cease to be true as soon as reasonably practicable.

15.3 Client

• If a corporation, properly incorporated and authorised; obligations are binding.
• Entry into and performance do not breach obligations or cause default.
• Holds necessary licences and authorities; if a trustee, has required powers and indemnity from trust assets.
• Will promptly inform Capital Guard if any statement becomes untrue.

16. Settlement of Disputes

• Either party may give written Notice of a dispute; representatives must meet within 10 Business Days to resolve. Obligations continue during resolution.
• Any party may issue a Mediation Notice if unresolved; mediator to be agreed or appointed by the President of the Australian Bar Association (or similar). Costs shared equally; legal costs borne individually.
• No legal proceedings (except urgent injunctive relief) until the above steps are attempted.

16.6 Features and Risks of Transactions

• Financial Product values may fluctuate due to market conditions, rates, and events; leverage and currency exposure may increase losses.
• Liquidity may be limited during volatility, halts, or suspensions.
• Regulators or exchanges may suspend or adjust trading; we have powers under these Terms that may affect your positions. No advice is provided unless expressly stated.

17. Confidentiality and Privacy

• Capital Guard will take reasonable steps to secure Confidential Information and disclose only internally, to service providers under confidentiality, as permitted, required by exchanges, legal process, government orders, law or with Client consent.
• If you provide another person’s personal information, you must inform them Capital Guard holds it, the purpose, access and correction rights, and potential disclosure to contractors.
• Breach of confidentiality or privacy obligations may give rise to liability as set out in clause 13 and applicable law.

17.1 Recordings

• You authorise recording of incoming and outgoing calls. Recordings may be used for training, compliance and dispute resolution. Retention is subject to Applicable Laws.
• Copies may be provided upon request where a dispute exists; reasonable costs may apply.

18. Tax Matters

• Capital Guard will use reasonable efforts to assist with exemption or refund claims where required information is provided.
• Capital Guard is not liable for taxes on Client’s Assets or income therefrom; the Client must reimburse any such tax imposed on Capital Guard or its Sub custodians, excluding income tax on fees.

19. Notices

• Notices may be delivered by hand, post, email, or other lawful agreed means to designated addresses.
• Post: deemed received 3 days domestic, 7 days international. Email: when the recipient system logs receipt. Electronic Transmission Service: when dispatched with correct answerback.
• Notices after 4:00 PM or on non Business Days are deemed received at 9:00 AM next Business Day.
• Email instructions may be accepted or rejected at Capital Guard’s discretion; security procedures agreed must be followed and an Authorised Person should be available for confirmation.

20. General

20.1 Assignment

No assignment without prior consent not unreasonably withheld or delayed.

20.2 Waivers

Waivers must be in writing. Delay or partial exercise is not a waiver.

20.3 Variations

Capital Guard may vary this Agreement by Notice. Continued use of Services constitutes acceptance.

20.4 Continuing Indemnities

Indemnities are continuing, independent, survive termination, and are not reduced by set off or similar.

20.5 Entire Agreement

This Agreement is the entire understanding and replaces prior custodial arrangements as at its date.

20.6 Attorneys

Signatories under power of attorney warrant their authority is unaffected.

20.7 Law and Jurisdiction

This Agreement is governed by the laws of New South Wales and the Commonwealth of Australia.

Schedule 1 — Additional Representations, Warranties and Undertakings

Trustee of a Trust

Additional trustee representations and undertakings including validity, authority, resolutions, binding obligations, priority of Capital Guard’s rights, sole trusteeship, no re settlement, no termination or vesting, no removal, no conflict, investment manager authority and notices, trustee indemnity rights, and authority to operate bank accounts and contracts.

Responsible Entity of a Fund

Undertakings not to retire without acceptable successor and execution of required documents; no adverse amendments or revocation without consent; notifications of required legal changes; and representations on constitution, property, sole responsible entity, conflict, and indemnity rights.

Trustee of a Superannuation Fund

Representations on SIS Act compliance, investment strategy compliance, constitution, authorisations, procedural compliance, indemnity from fund assets, no re settlement, no termination or vesting, no conflict, and compliance with obligations.

Agent Under an Investment Management Agreement

Undertakings not to amend or terminate the IMA to affect compliance; representations on investor acknowledgements, validity, authority, and binding nature; trustee specific authority where applicable; and acknowledgment that the agent acts for the investor and in personal capacity.