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adviser terms and conditions

Adviser Online Terms and Conditions 
 

You must read and understand these Terms and Conditions before registering. By registering we will provide you with Adviser Online access. 
 

1. Registration

By registering you agree that you:

  1. have read and understood the terms and conditions set out in this document (together, the ‘Terms and Conditions’);
  2. have considered these Terms and Conditions in accordance with your other legal obligations;
  3. understand your Adviser Online password is yours only, and that you are at all times solely responsible for ensuring the security of it; and
  4. understand that you are responsible for the security and privacy of any HESTA member information you access.

    Nothing in these Terms and Conditions is intended to exclude, restrict or modify:

  5. the application of any provisions of The Australian Consumer Law in the Competition and Consumer Act 2010, the Corporations Act 2001, the Australian Securities and Investment Commission Act 2001 or any equivalent State and Territory legislation; or
  6. the exercise of any right conferred by such provisions or HESTA's liability for a breach of a condition or a warranty implied by such a provision.

 

2. Terms and Conditions

2.1 This document sets out the terms and conditions governing your use of and access to Adviser Online and any HESTA member information made available to you via Adviser Online.

2.2 To register for Adviser Online:

  1.  if you are registering as a Financial Adviser:
    1.  you must be listed on ASIC's financial adviser register; and
    2. your current AFS Licensee must have executed a HESTA Licensee Agreement with the Trustee.
  2. If you are registering as a Dealer Group Manager, you must be acting on behalf of an AFS Licensee which has executed a HESTA Licensee Agreement with the Trustee.

 

3. Meaning of Terms

  • Adviser/s and Financial Adviser(s) means the individuals who are representatives or Authorised Representatives of the Licensee, are authorised to provide the Financial Advice Services on behalf of the Licensee and are registered for HESTA’s Adviser Online.
  • Adviser Online is the online service that HESTA provides to Authorised Users, for accessing the information set out in clause 9.1.
  • Adviser Online Access means the permission (including ongoing permission) HESTA applies to an Authorised User after logging into Adviser Online.
  • AFSL means Australian Financial Services Licence issued by ASIC.
  • AFS Licensee means the holder of an AFSL.
  • Authorised Representative has the meaning given in section 9 of the Corporations Act 2011 (Cth).
  • Authorised User means Financial Advisers and Dealer Group Managers, who are authorised by the Trustee to access Adviser Online from time to time. 
  • Dealer Group Manager means a person acting on behalf of an AFS Licensee, who is registered for HESTA’s Adviser Online.
  • HESTA means the registrable superannuation entity HESTA (ABN 64 971 749 321).
  • HESTA Licensee Agreement means an agreement between the Trustee and your AFS Licensee governing the provision of online adviser access and the adviser service fee facility, in a form provided by the Trustee from time to time, acting reasonably.
  • Personal Information has the meaning given in the Privacy Act 1988 (Cth).
  • Purpose has the meaning given to that term in clause 9.2.
  • Privacy Act means Privacy Act 1988 (Cth).
  • Support Staff means a user authorised by a Financial Adviser or Dealer Group Manager to access Adviser Online, which may include their nominated support staff.
  • Trustee means H.E.S.T Australia Ltd (ABN 66 006 818 695) as trustee for HESTA.
  • We, us or our refers to the Trustee and/or HESTA as the context requires.
  • You, yourself and your refers to the Authorised User permitted access to use Adviser Online. Any references to you, yourself and your includes a reference to any third party or Support Staff you have authorised to use your Adviser Online Access with the intent that you shall be liable for any use of your Adviser Online Access and for any failure on the part of any such third party or Support Staff to observe these Terms and Conditions.

 

4. Accepting these Terms and Conditions

4.1 You accept and agree to be bound by these Terms and Conditions:

  1. by submitting an Adviser Online registration; and
  2. after any variation to the Terms and Conditions, by continuing to access Adviser Online under the varied Terms and Conditions.

 

5. Variation

5.1 We may vary these Terms and Conditions at any time and will provide reasonable notice to you.

5.2 We will use best endeavours to provide 14 days' prior written notice of any changes to these Terms and Conditions, however if the changes are required to by law or required to be made urgently, then we will endeavour to provide notice as soon as reasonably practicable.

5.3 We will provide written notice of variations to these Terms and Conditions. This notice may be given by providing varied Terms and Conditions at a location on the website that is prominently displayed and accessible through use of Adviser Online, via email or other reasonable channels.

5.4 If you do not agree with a variation of to the Terms and Conditions made by us, you can stop using Adviser Online at any time.

5.5 If you use Adviser Online after a notice of variation to the Terms and Conditions has been given, you will be taken to have accepted the Terms and Conditions as varied.

 

6. Cancellation of Services

6.1 We will cancel your registration to Adviser Online if (for example):

  1. you have contacted us to instruct cancellation;
  2. you no longer hold a current AFSL/ASIC registration; or
  3. we have reasonable grounds to suspect usage that is fraudulent, not within the Terms and Conditions, or there are other security reasons sufficient to require cancellation.

6.2 This is not an exhaustive list and we may, cancel your access to Adviser Online at any time (acting reasonably), where necessary to comply with law, to protect or legitimate interests or acting consistently with our duty as Trustee.

6.3 We will use reasonable endeavours to provide you with at least 14 days' notice of cancellation of your registration to Adviser Online, except where such cancellation of access is required by law, where you are not complying with law or are acting inconsistently with the Trustee duties or these Terms and Conditions, where our engagement with you has ceased or other emergencies (in which case we will provide you with notice as soon as reasonably practicable).

6.4 We may cancel your registration where you have changed AFS Licensee, and you acknowledge that a change of AFS Licensee may result in the expiration of all existing authorities you hold on HESTA member accounts.

6.5 When your registration is cancelled you will no longer have access to Adviser Online.

 

7. Availability of Services

7.1 We will use all reasonable efforts to ensure that services specific to your Adviser Online registration are available at all times. We will not be liable for or in connection with:

  1. failure of a service to perform, in whole or in part, any function which we have specified it will perform;
  2. the unavailability of a service to you, in whole or part, because of the failure of any communication network, ancillary equipment or any circumstance beyond our reasonable control; or
  3. delays or errors in the execution of any transaction, information content or instruction because of the failure of any communication network, ancillary equipment or any circumstance beyond our reasonable control.

 

8. Use of Adviser Online

8.1 We will use all reasonable efforts to ensure that the information displayed in Adviser Online is without errors, and corrections are made promptly. We will take all reasonable precautions to protect the confidentiality of the information held in Adviser Online.

 

9. Access and Security

9.1 Adviser Online allows:

  1. the servicing Financial Adviser to access information regarding their clients who are members of HESTA; and
  2. Dealer Group Managers to access data and reports specific to their Adviser Online registration.

9.2 You must only utilise Adviser Online on behalf of HESTA members to assist in providing the financial services that are the subject of your engagement with HESTA members in a manner consistent with your AFSL or your employment (as applicable), applicable law and the terms and conditions of your engagement with HESTA (the Purpose).

9.3 By logging into Adviser Online, you agree that you will:

  1. only access HESTA member information you are properly authorised to access;
  2. only use Adviser Online and HESTA member information for the Purpose; and
  3. notify HESTA immediately if you have been provided access to any HESTA member information that you should not have access to.

9.4 All Authorised Users will be required to create their own password as part of the Adviser Online registration process.

9.5 You must ensure at all times that:

  1. your password is kept secure and not disclosed to anyone; and
  2. you do not by any other action or omission allow any person other than yourself to access your client's information or effect any transactions relating to Adviser Online.

9.6 You must:

  1. protect your password from being lost, stolen or disclosed; and
  2. log off immediately after you have finished accessing Adviser Online.

9.7 You must not:

  1. keep a written record of your password;
  2. give, show or tell your password to anyone; or
  3. allow any person to read or hear your password, or watch you enter your password.

9.8 You acknowledge that:

  1. you understand that your password allows anybody access to personal information and effect any transactions permitted by Adviser Online. Leaving your computer unattended while logged into Adviser Online may lead to these consequences;
  2. you authorise us, when access to Adviser Online has been gained following the successful entry of your password, to treat any operations involving your Adviser Online Access (whether involving access to all information or the effecting of any transactions) as having been personally authorised in writing by you;
  3. we are under no duty whatsoever to enquire or establish if a person accessing Adviser Online is a person actually authorised; and
  4. you understand that no data transmission over the internet can be guaranteed as totally secure and that, while we will take all reasonable measures to protect the security of such information, we cannot ensure or warrant the security of any information transmitted using Adviser Online; and
  5. you are responsible for implementing and managing reasonable security controls on any device you use to access Adviser Online.

9.9 If you suspect that your password may have become known to any other person, or that for any reason another person may have been in a position to access Adviser Online on your behalf, you must ensure that:

  1. your password is changed; and
  2. you inform us immediately on 1800 813 327

 

10. Currency and Accessibility

10.1 You acknowledge that:

  1. all information available through Adviser Online may not always be current;
  2. any transactions effected via Adviser Online may take some time to process; and
  3. the services and functions offered through Adviser Online may not all be available at all times.

 

11. Privacy of Authorised User information

11.1 The purpose for which we are collecting your information is to administer Adviser Online Access and advice fee requests. If the information requested is not provided, we will not be able to register you as an Authorised User.

11.2 We may also use this information to notify you about HESTA and other products. We do not normally disclose personal information to parties outside HESTA, except parties contracted to provide services to us.

11.3 This includes but is not limited to the Fund's administration service provider, insurer, auditors and legal advisers. We also might be required by law to disclose information about you, for example to Government bodies such as AUSTRAC, and we may disclose information to relevant overseas bodies in various countries, as described in HESTA's Privacy Policy.

11.4 HESTA's Privacy Policy sets out how you can access information about your personal details held by us, correct any information which is inaccurate or out-of-date and information on the privacy complaints process.

11.5 You can read HESTA's Privacy Policy at www.hesta.com.au/privacy or call 1800 813 327 for a copy.

 

12. Privacy obligations

12.1 You must comply with the obligations under the Privacy Act in Australia and any other applicable privacy laws, including any determination, code or guideline issued under those laws in Australia.

12.2 You will maintain a privacy policy and on request provide us with a copy of such policy.

 

13. Data breach

13.1 This clause 13 applies if Personal Information made available to you under or in connection with these Terms and Conditions is, or is suspected to have been:

  1. subject to any unauthorised access or unauthorised disclosure; or
  2. lost in circumstances where unauthorised access to, or unauthorised disclosure of, Personal Information is likely to occur, (each a Data Breach).

13.2 If you become aware of a suspected, likely or actual Data Breach, you must:

  1. notify the us in writing as soon as practicable, and in any event, within 24 hours of becoming aware of such Data Breach (before making any other public notifications, or notifying a Regulator, in relation to that event);
  2. promptly take all reasonably necessary steps to:
    1. comply with your obligations under the Privacy Act in relation to that event, including to remedy such Data Breach;
    2. prevent or mitigate any consequences, including any serious harm (as referred to in the Privacy Act) to any affected individuals; and
    3. provide us with all necessary information and documents requested by us about the event;
  3. as soon as reasonably practicable:
    1. undertake an investigation to determine the extent to which the Data Breach concerns any Personal Information from Advisor Online, including the conduct of an assessment of the suspected Eligible Data Breach; and
    2. provide the results of the investigation and assessment to us in writing, including the details of, and the circumstances giving rise to, the Data Breach and any additional information we request in relation to the Data Breach; and
    3. comply with all our directions in relation to the Data Breach in respect of Personal Information covered by these Terms and Conditions.

13.3 If you, after complying with clause 13.2, determine that an Eligible Data Breach has occurred and that notification of that Eligible Data Breach is required under the Privacy Act, you and we will agree in each instance who will be the most appropriate party to make any notifications required under the Privacy Act in relation to an Eligible Data Breach (but if the parties are unable to agree, then we will decide who will issue that notification and if we elect to issue the notification, at your request we will include your details in the notification).

13.4 If the notification will be issued together, you and we must co-operate in:

  1. preparing a proposed statement in accordance with section 26WK(3) of Part IIIC of the Privacy Act;
  2. agreeing upon the method of notification for issuing such statement to affected individuals and the OAIC, such approval not to be unreasonably withheld or delayed; and
  3. issuing the statement to affected individuals and the OAIC.

13.5 Where you are to issue a notification, then:

  1. you must as soon as possible, but within 5 Business Days of completing the steps under clause 13.2(c), provide us with a draft of the notification;
  2. make changes to the draft notification that we reasonably request within 2 Business Days; and
  3. issue the notification in accordance with the requirements of the Privacy Act (including any applicable time periods).

13.6 Where we are to issue a notification, then:

  1. we will as soon as possible, but within 5 Business Days of you completing the steps under clause 13.2(c), notify you and provide you with a draft of the notification;
  2. consider in good faith any changes to the notification that you reasonably request within 2 Business Days; and
  3. issue the notification in accordance with the requirements of the Privacy Act (including any applicable time periods).

13.7 Where we have reasonable grounds to believe that there has been an Eligible Data Breach, we will notify you as soon as practicable and you must provide all necessary information, documents and assistance required in order to prepare any such statement and notify affected individuals and the OAIC in respect of the Eligible Data Breach in accordance with Division 3B of Part IIIC of the Privacy Act.

13.8 You must ensure that:

  1. we are promptly notified of any investigation or other action taken by the OAIC in connection with any actual or suspected Eligible Data Breach, or notification in relation to that matter; and
  2. we are kept informed in relation to that investigation or other action.

 

14. Security Incidents

14.1 Unless otherwise specified by clause 13, you must, as soon as practicable, notify us of any suspected, likely or actual:

  1. unauthorised access to, or use, copying, disclosure or loss of information made available pursuant to these Terms and Conditions, and in any event no later than 24 hours after becoming aware of such unauthorised access, use, copying or disclosure; and
  2. security incidents affecting information, software or hardware maintained or accessed by you in connection with these Terms and Conditions which:
    1. may have the potential to affect us or HESTA members; or
    2. you have notified to a regulator (whether or not in Australia and whether or not such notification was on a mandatory or voluntary basis),
      and in any event no later than 24 hours after becoming aware of such incident; and
  3. any other circumstances that are likely to result in a contravention of our security requirements set out in these Terms and Conditions or notified to you by us from time to time, and in any event no later than 5 Business Days after becoming aware of such event.

14.2 After notifying us of any event under clause 14.1, you must comply with all of our reasonable directions in relation to the relevant event, including providing us with all information, documents and assistance we reasonably require in respect of the event.

 

15. Liability

15.1 You agree that you are solely responsible for all use of your Adviser Online Access, including all information accessed and any transactions made.

15.2 You agree that all use of Adviser Online will be for lawful purposes only, and that you are liable for any use for unlawful purposes.

15.3 To the maximum extent permitted by law, you accept full responsibility and indemnify us for any claims arising from expenses, loss or liability that is incurred by any person as a result of your use of Adviser Online and your Adviser Online Access, other than as a result of the Trustee’s negligence, fraud or wilful misconduct, or as provided in clause 15.5.

15.4 Without limiting clauses 15.1, 15.2 or 15.3, you are liable in respect of access to all information and any transactions made:

  1. when access to Adviser Online has been gained following the successful entry of your password;
  2. if you disclose your password to another person or fail to keep it properly secure; or,
  3. if by your action or omission, an unauthorised third party has gained access to Adviser Online following the successful entry of your password.

15.5 You will not be liable for unauthorised access to, or any transactions effected upon, Adviser Online Access following correct entry of your password if all of the following apply:

  1. you were in no way responsible for the password becoming known to, or Adviser Online being used by, an unauthorised user;
  2. you were not otherwise in breach of these Terms and Conditions;
  3. you have otherwise acted honestly and reasonably and taken all due and proper care in the use of Adviser Online and your Adviser Online Access;
  4. you fully co-operate with us and assist in investigating the circumstances that may have resulted in the unauthorised access or an unauthorised transaction. Nothing in this clause 15.5 is to be taken as imposing a duty or obligation on us that would not otherwise apply.

15.6 To the extent permitted by law, we are not liable for or in connection with:

  1. reliance by anyone on information obtained through the use of Adviser Online and your Adviser Online Access;
  2. any failure by Adviser Online to provide information or perform operations requested, or any delays;
  3. any amount of loss or damage;
  4. indirect, consequential or special loss or damage however caused, including as a result of negligence, whether or not the loss or damage was foreseeable;
  5. unavailability of Adviser Online; or
  6. any events whatsoever beyond our control,

except where the loss, damage or liability arises due to our gross negligence, fraud or deliberate misconduct.

 

16. Intellectual Property Rights

16.1    Unless otherwise indicated, we own or license from third parties all intellectual property rights (including registered or unregistered rights in respect of copyright, designs, patents, trademarks and other intellectual property rights, as they may exist anywhere in the world) in Adviser Online, and all of the material made available to you via Adviser Online (the ‘Content’).

16.2    Subject to clause 16.3, nothing in these Terms and Conditions operates to grant any rights in or otherwise to assign or transfer any title in, or ownership of, any intellectual property rights in Adviser Online or the Content.

16.3    We grant you a non-exclusive, non-transferable, non-sublicensable, royalty-free, revocable licence for the duration of your registration to use and access Adviser Online and view the Content on the terms set out in these Terms and Conditions and, where applicable, as expressly authorised by us and/or our third party service providers.

 

17. Applicable Law

  1. These Terms and Conditions are governed by the law of Victoria, Australia.
  2. The parties submit to the non-exclusive jurisdiction of the courts of Victoria, Australia and any courts which have jurisdiction to hear appeals from any of those courts.

 

18.  Further information

18.1 Information on this website is general information only and should not be considered to be personal advice.

 

 

Licensee Terms and Conditions

 

1. Provision of online adviser access and adviser service fee facility

1.1 The Trustee and the Licensee agree that the Trustee will provide the Licensee's Representatives with access to the Trustee’s Adviser Online facility and pay Adviser Service Fees (or ASFs) to the Licensee on and subject to the terms in this Agreement.

 

2. Adviser service fee

2.1 Subject to the other terms of this Agreement, the Trustee will pay to the Licensee, from the relevant Member's interest or interests in HESTA, and subject to those interests having a sufficient balance, such ASFs as a Member may authorise in accordance with this Agreement.

2.2 The Trustee has no obligation to pay an ASF in respect of a Member or a Member's interest in HESTA unless the Trustee has received a Payment Authority in relation to that Member and interest.

2.3 The Licensee must ensure that the charging and receipt of any amount of ASF by the Licensee or its Representatives, and any agreement made between a Member and the Licensee or its Representatives for the charging of an ASF:

(a) is reasonable (including as to the amount);

(b) relates only to advice and services related to a Member’s interest in HESTA;

(c) is otherwise in accordance with the Relevant Law; and

(d) is in accordance with any requirements of the Trustee pursuant to clause 2.4 that the Trustee has disclosed or has notified to the Licensee pursuant to this Agreement.

2.4 The Trustee may from time to time, in its reasonable discretion, make or vary:

(a) caps or other limits on the amount or type of ASFs that it will deduct from the interests of a Member or Members;

(b) other requirements (including rules and procedures) relating to the timing, frequency and administrative arrangements for verifying, deducting or paying ASFs,

and the Trustee will notify the Licensee of these caps, limits or other requirements by disclosing them on the Trustee's website or by another reasonable form of notice to the Licensee.

2.5 The Trustee may, in its reasonable discretion, refuse to pay an ASF or ASFs or portion thereof, suspend any such payment, or vary the frequency or amount of any ASF to be deducted, if the Trustee reasonably believes that:

(a) this is necessary or desirable for the purposes of the Trustee complying with the Relevant Law or the Trust Deed;

(b) the relevant payment would be contrary to the Trustee's then-current requirements for ASFs as determined by the Trustee pursuant to this Agreement;

(c) the Representative for whose services the ASF is otherwise payable has ceased to be a representative of the Licensee; or

(d) the Licensee is for any other reason not entitled to receive the amount in question.

 

3. Refund of ASF

3.1 The Licensee will, as soon as reasonably practicable and in any event within 14 days, refund to the Trustee any amount of ASF paid to the Licensee if either:

(a) the Licensee becomes aware that; or

(b) the Trustee gives the Licensee a written notice (based on reasonable grounds) that,

the amount:

(c) was not in accordance with a current Payment Authority;

(d) was deducted by the Trustee or received by the Licensee contrary to the Relevant Law; or

(e) was an amount to which the Licensee was not entitled, for any reason.

3.2 Without limiting clause 3.1, the Licensee will refund to the Trustee, as soon as reasonably practicable, any amount or portion of an ASF paid to the Licensee that relates to a period after the death of the Member from whose interest the Trustee paid the ASF.

3.3 Without prejudice to any other set-off rights the Trustee might have at law, the Trustee may set off any amount payable by the Licensee to the Trustee under this Agreement in reduction of any ASF or other amount that would otherwise be payable by the Trustee to the Licensee. 

 

4. Adviser Online and Protection of member information

4.1 The Trustee provides the Adviser Online service subject to the Licensee's compliance with the terms of this Agreement and compliance by the Licensee’s Representatives with the Adviser Online Terms and Conditions.

4.2 The Licensee must ensure that each of its Representatives complies with the Adviser Online Terms and Conditions. The Licensee is liable to the Trustee for any breach of the Adviser Online Terms and Conditions by any of its Representatives as if the Licensee had itself committed the breach.

4.3 In relation to any confidential information or personal information about a Member or Member interest in HESTA that the Licensee or any of its Representatives directly or indirectly receives, or gains access to or control over pursuant to this agreement or by means of Adviser Online, the Licensee must:

(a) take reasonable steps to protect the confidentiality, privacy and security of that information, which steps must also be at least to the standard of the relevant Representative obligations under the Adviser Online Terms and Conditions; and

(b) otherwise comply, and ensure that its Representatives comply, with their obligations under all applicable Privacy Laws and any duty of confidentiality that the Licensee owes to the Member; and

(c) if the Licensee is not subject to the Privacy Laws for any reason (for example because its annual turnover does not meet the statutory threshold) the Licensee will nevertheless comply, and ensure that its Representatives comply, with the Privacy Laws as if the Licensee and its Representatives were subject to those laws.

4.4 The Licensee will maintain a privacy policy and on reasonable request provide the Trustee with a copy of such policy.

 

5. Design and distribution obligations

5.1 In relation to retail product distribution conduct relating to an interest in HESTA:

(a) the Licensee must comply with, and ensure its Representatives comply with, their respective Product Design and Distribution Obligations; and

(b) the Trustee must comply with its Product Design and Distribution Obligations as they relate to the Licensee, its Representatives or their clients. 

 

6. Compliance oversight and co-operation

6.1 In relation to:

(a) any ASF paid or payable pursuant to this Agreement;

(b) any financial services given or required to be given by or on behalf of the Licensee to a Member and for which any ASF was paid or payable; or

(c) any information received or accessed by the Licensee or its Representatives pursuant to this Agreement or the Adviser Online service,

the Licensee will provide the Trustee with such documents, information and assistance as the Trustee may reasonably request from the Licensee from time to time to enable the Trustee to:

(d) comply with this Agreement or the Relevant Law, or to assess the Trustee's compliance with this Agreement or the Relevant Law; or

(e) assess the Licensee's or any of its Representatives compliance with this Agreement, the Adviser Online Terms and Conditions, or the Relevant Law.

6.2 For the purposes of clause 6.1(e), the Trustee may appoint an auditor or other agent to act on the Trustee’s behalf and the Licensee shall reasonably co-operate with such person and, if reasonably necessary, give such person reasonable access to the Licensee’s business premises, systems, records, employees and agents.

6.3 In relation to any documents or other information provided to, or accessed by, the Trustee or its agents pursuant to this clause 6, the Trustee will take reasonable steps to protect the confidentiality, privacy and security of that information and otherwise comply with applicable privacy laws in relation to that information. 

6.4 For the avoidance of doubt, this clause 6 does not require the Licensee to disclose information for which the Licensee is entitled to claim legal professional privilege, or require the Licensee or the Trustee to do anything, or refrain from doing anything, if it would be contrary to the Relevant Law or other laws.

 

7. Modern Slavery

7.1 The Licensee must take commercially reasonable steps to identify, assess and address risks of Modern Slavery practices in its operations and supply chains.

7.2 The Licensee must notify the Trustee of any actual or suspected instances of Modern Slavery practices within the Licensee's operations and supply chains as soon as reasonably practicable upon becoming aware of such instances.

7.3 Promptly following the Trustee’s reasonable request, the Licensee must deliver to the Trustee a report on the risks of Modern Slavery in the Licensee's operations and supply chains, including information regarding the following:

(a) the Licensee's structure and operations;

(b) any assessment the Licensee (and the Licensee's broader group) has conducted to identify the risk of Modern Slavery practices in its operations and supply chains;

(c) the policies and procedures (including controls) developed by the Licensee (and its broader group) to address the risks of Modern Slavery in the Licensee's operations and supply chains, including those risks identified in the Licensee’s assessment as referenced in sub-paragraph (b) above;

(d) the actions taken to respond to the risks of Modern Slavery identified during the assessment referenced in sub-paragraph (b) above (including diligence and remediation processes);

(e) how the Licensee assesses the effectiveness of the actions referenced in sub-paragraph (d) above; and

(f) any known instances of Modern Slavery practices in the Licensee’s operations and supply chains, and how the Licensee has sought to remediate such instances of Modern Slavery.

 

8. Breach reporting

8.1 Without limiting the Licensee's other obligations under this Agreement, the Licensee must notify the Trustee as soon as practicable if the Licensee becomes aware or reasonably suspects that:

(a) the Licensee has breached this Agreement; or

(b) a Representative has breached the Adviser Online Terms and Conditions; and

(c) such breach or suspected breach has caused, or has the potential to cause:

(i) loss or damage to a Member or other HESTA beneficiary, an applicant for HESTA membership, or to The Trustee (whether the loss or damage is financial, reputational, privacy-related or of some other kind); or

(ii) the Trustee to breach the Relevant Law.

 

9. Data breach

9.1 This clause 9 applies if Personal Information in relation to this Agreement is, or is suspected by the Licensee to have been:

(a) subject to unauthorised access by any person or subject to unauthorised disclosure by the Licensee or its employees, agents, Representatives or any other person acting on the Licensee's behalf; or

(b) lost by the Licensee or its employees, agents, Representatives or any other person acting on the Licensee's behalf, in circumstances where unauthorized access to, or unauthorised disclosure of, Personal Information is likely to occur,

(each a Data Breach).

9.2 If the Licensee becomes aware of a suspected, likely or actual Data Breach, the Licensee must:

(a) notify the Trustee in writing as soon as practicable, and in any event, within 24 hours of becoming aware of such Data Breach (before making any other public notifications, or notifying a Regulator, in relation to that event);

(b) promptly take all reasonable necessary steps to:

(i) comply with its obligations under the Privacy Laws in relation to that event, including to remedy such Data Breach;

(ii) prevent or mitigate any consequences, including any serious harm (as referred to in the Privacy Laws) to any affected individuals; and

(iii) provide the Trustee with all necessary information and documents requested by the Trustee about the event;

(c) as soon as reasonably practicable:

(i) undertake an investigation to determine the extent to which the Data Breach concerns any Personal Information in relation to this Agreement, including the conduct of an assessment of the suspected Eligible Data Breach; and

(ii) provide the results of the investigation and assessment to the Trustee in writing, including the details of, and the circumstances giving rise to, the Data Breach and any additional information we request in relation to the Data Breach; and

(d) comply with all reasonable directions of the Trustee in relation to the Data Breach in respect of Personal Information covered by this Agreement.

9.3 If the Licensee, after complying with clause 9.2(c), determine that an Eligible Data Breach has occurred and that notification of that Eligible Data Breach is required under the Privacy Laws, the parties will agree in each instance who will be the most appropriate party to make any notifications required under the Privacy Laws in relation to an Eligible Data Breach (but if the parties are unable to agree, then the Trustee will decide who will issue that notification and if the Trustee elects to issue the notification, it must at the Licensee's request include the Licensee's details in the notification).

9.4 If the parties issue the notification together, the parties must co-operate in:

(a) preparing a proposed statement in accordance with section 26WK(3) of Part IIIC of the Privacy Laws;

(b) agreeing upon the method of notification for issuing such statement to affected individuals and the OAIC, such approval not to be unreasonably withheld or delayed; and

(c) issuing the statement to affected individuals and the OAIC.

9.5 Where the Licensee is to issue a notification, then (subject to the Relevant Law):

(a) the Licensee must as soon as possible, but within 5 Business Days of completing the steps under clause 9.2(c), provide the Trustee with a draft of the notification;

(b) make changes to the draft notification that the Trustee reasonably request within 2 Business Days; and

(c) issue the notification in accordance with the requirements of the Privacy Laws (including any applicable time periods).

9.6 Where the Trustee is to issue a notification, then:

(a) the Trustee will as soon as possible, but within 5 Business Days of the Licensee completing the steps under clause 9.2(c), notify the Licensee and provide the Licensee with a draft of the notification;

(b) consider in good faith any changes to the notification that the Licensee reasonably request within 2 Business Days; and

(c) issue the notification in accordance with the requirements of the Privacy Laws (including any applicable time periods).

9.7 Where the Trustee has reasonable grounds to believe that there has been an Eligible Data Breach, the Trustee will notify the Licensee as soon as practicable and the Licensee must provide all necessary information, documents and assistance required in order to prepare any such statement and notify affected individuals and the OAIC in respect of the Eligible Data Breach in accordance with Division 3B of Part IIIC of the Privacy Act.

9.8 The Licensee must ensure that:

The Trustee is promptly notified of any investigation or other action taken by the OAIC in connection with any actual or suspected Eligible Data Breach, or notification in relation to that matter; and

(a) The Trustee is kept informed in relation to that investigation or other action.

 

10. Data retention

10.1 The Licensee shall maintain such records as are reasonably necessary or are required by the Relevant Law to:

(a) substantiate the Licensee's compliance with this Agreement throughout the term of the Agreement; and

(b) enable the Trustee to assess properly the matters referred to in clause 6.1(e).

 

11. Reporting to the licensee

The Trustee will provide to the Licensee, on request, reporting in relation to the Licensee's clients who are Members, in accordance with the Trustee's advice licensee reporting policies  current from time to time (for example, about amounts of funds under management or amounts of ASF paid).

 

12. Notices

12.1 The Licensee must send any notice that it is required to give the Trustee pursuant to this Agreement by email to advicerelationships@hesta.com.au or to such other address or recipient as the Trustee may inform the Licensee of in writing from time to time.

 

13. Variation and termination of this agreement

13.1 The Trustee may, in its reasonable discretion, vary the terms of this Agreement from time to time by written notice to the Licensee.

13.2 This Agreement will continue until terminated by either party in accordance with its terms.

13.3 In addition to any termination rights that a party may have under general law, either party may terminate this Agreement at any time by 30 days’ prior written notice to the other party.

13..4 The termination of this Agreement is without prejudice to the accrued rights, remedies or claims of either party against the other.

13.5 Clauses 3, 4.2, 4.3, 6, 8, 9,10, 15 and 16 survive the termination of this Agreement. 

 

14. ASF and GST

14.1 Unless indicated otherwise, all amounts payable in relation to this Agreement are exclusive of GST.

14.2 If a party to this agreement (Supplying Party) makes a taxable supply to another party (Recipient) under or in connection with this agreement (not being a taxable supply the consideration for which is expressly described as GST inclusive), then the Recipient must also pay to the Supplying Party, at the same time as the consideration for the taxable supply is paid or otherwise given to the Supplying Party and without set off, deduction or requirement for demand, an additional amount equal to any GST payable in connection with the taxable supply. 

14.3 The  Licensee must submit to the Trustee  tax invoices in respect of the supply by or on behalf of the Licensee of any financial services for which any ASF is payable in relation to this Agreement (Supplies).

14.4 The Trustee will not be required to pay any ASF until the Licensee has issued a valid tax invoice to the Trustee in respect of the relevant Supplies.

 

15. General

15.1 The laws of Victoria, Australia govern this Agreement. The parties agree to the non-exclusive jurisdiction of the courts of Victoria and any court competent to hear appeals from those courts.

15.2 Nothing in this Agreement constitutes the Licensee as an employee, agent, partner or joint venturer relationship between the Licensee and the Trustee.

15.3 Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction will be ineffective in that jurisdiction to the extent of the prohibition or unenforceability. That provision will not invalidate the remaining provisions of this Agreement, nor affect the validity of enforceability of the provision in any other jurisdiction.

 

16. Definitions

In this Agreement the following terms have the following meaning, unless the context requires otherwise:

  • Adviser Online means the online service that the Trustee provides to financial advisers for accessing information regarding their clients who are Members.
  • Adviser Online Terms and Conditions means the Trustee's terms and conditions for providing Adviser Online available at hesta.com.au/adviser-terms-and-conditions (or a successor site) , as updated from time to time.
  • Adviser Service Fee or ASF means fees for financial product advice or other financial services provided to a Member by the Licensee or a Representative in relation to one or more of the Member's interests in HESTA.
  • Agreement means these Licensee Terms and Conditions between the Licensee and the Trustee.
  • APRA means the Australian Prudential Regulatory Authority established under the Australian Prudential Regulation Authority Act 1998 (Cth).
  • ASIC means the Australian Securities and Investments Commission (ASIC) established under the Australian Securities and Investments Commission Act 2001 (Cth).
  • ATO means the Australian Taxation Office.
  • AUSTRAC means the Australian Transaction Reports and Analysis Centre established under the Financial Transaction Reports Act 1988 (Cth) and continued in existence under the Anti Money Laundering and Counter Terrorism Financing Act 2006 (Cth).
  • Business Day means any day that is not a Saturday, Sunday or day that is wholly or partly observed as a public holiday in Victoria, Australia.
  • Eligible Data Breach has the meaning given in the Privacy Act 1988 (Cth)
  • GST has the meaning given to that term in A New Tax System (Goods and Services Tax) Act 1999 (Cth).
  • HESTA means the registrable superannuation entity HESTA (ABN 64 971 749 321).
  • Licensee means the entity that has entered into this Agreement with the Trustee, as identified in item 1 of the licensee registration form.
  • Member means a member of HESTA.
  • Modern Slavery has the meaning given in the Modern Slavery Act 2018 (Cth).
  • Payment Authority means an authority from a Member, authorising the Trustee to deduct an ASF or ASFs from an interest that the Member has in HESTA, and which the Trustee is reasonably satisfied is:

(a) current;

(b) complies with the Relevant Law; and

(c) complies with the relevant and current requirements that the Trustee determines from time to time pursuant to this Agreement.

  • Personal Information has the meaning given in the Privacy Act 1988 (Cth).
  • Privacy Act means the Privacy Act 1988 (Cth)
  • Privacy Laws means the Privacy Act 1988 (Cth) in Australia and any other applicable privacy laws, including any determination, code or guideline issued under those laws in Australia.
  • Product Design and Distribution Obligations means the obligations contained in Part 7.8A of the Corporations Act 2001 (Cth).
  • Regulator means, as relevant:

(a) APRA;

(b) ASIC;

(c) ATO;

(d) AUSTRAC; and

(e) any other Australian government authority responsible for administering the laws or any other rules governing the operation of the Fund or the activities of the parties in relation to the Fund,

and any successor, or any replacement, of any of them.

  • Relevant Law means any of the following as in force from time to time:

(a) the Corporations Act 2011 (Cth);

(b) the Superannuation Industry (Supervision) Act 1993 (Cth);

(c) the Privacy Act 1988 (Cth), including the Australian Privacy Principles;

(d) the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth);

(e) Australian income tax legislation;

(f) the Modern Slavery Act 2018 (Cth);

(g) any Act or other legislation substantially replacing or superseding any of the above laws;

(h) any regulations or other subsidiary legislation made pursuant to any of the above laws;

(i) any instrument, determination, standard, policy or requirement (however described) made by a government regulator having responsibility for regulating compliance with any of the above laws.

  • Representative for the purposes of these Licensee Terms and Conditions means an authorised representative (as defined in section 916A of the Corporations Act 2011 (Cth)) of the Licensee.
  • Trustee means H.E.S.T Australia Ltd (ABN 66 006 818 695). 

 

 

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