STAKE (STAKESHOP PTY LTD) – TERMS AND CONDITIONS (NEW ZEALAND SERVICE)
This Agreement governs your opening of an Account with Stake (Stakeshop Pty Ltd), your use of the Account, as well as the provision of the Stake Service.
We reserve the right to amend the Agreement from time to time. Any amendments shall come into effect 10 days after publication of the amendment on the Website.
If the amendment is required for urgent technical, risk, or regulatory compliance reasons, the amendment will come into effect immediately upon publication on the Website. We will use reasonable endeavours to inform you of any changes, which may include notifying you by email. If you do not agree with the relevant changes, you can cancel our services and terminate your Account in accordance with clause 34 below. If, however, you continue to use the Stake Service after we have changed the terms, you will be deemed to have accepted the new terms.
By creating an Account with Stakeshop Pty Ltd, you not only agree to our terms & conditions set out in this Agreement, but you also agree to the terms & conditions set out by our partners. As such, please ensure you read and understand these terms & conditions, as well as those of our partners.
Links to their terms & conditions are below:
For DriveWealth Customer Account Agreement, please click here.
For DriveWealth Limited Purpose Margin Agreement, please click here.
For DriveWealth Master Securities Lending Agreement, including the Collateral Administration Agreement, Institutional Custody Agreement and Collateral Account Control Agreement, please click here.
For the Stake Wall St Rewards Terms & Conditions, please click here.
For the Stake Black Terms & Conditions, please click here.
For the Stake Customer Code of Conduct, please click here.
In this Agreement, unless the contrary intention appears:
- the singular includes the plural and vice versa;
- a reference to a gender includes each other gender;
- a reference to a regulatory guide, statute or other law includes regulations and other instruments made under it and consolidations, amendments or replacements of any of them; and
- a reference to a person includes:
The following words have the indicated meanings in this Agreement unless the contrary intention appears:
- Account Holder
- Business Day
- Currency Conversion
- Fees and Charges
- FINRA Rules
- Force Majeure
- Intellectual Property Rights
- Listed Entity
- Mobile Application
- Service Provider
- Stake Service
- Us, our, we, Stake
3.1 This Agreement applies to all dealings between you and us. By opening an Account, you acknowledge that you have read, and agree to be bound by, this Agreement.
3.2 This Agreement will apply once we have accepted your application to open an Account.
3.3 We reserve the right to decline your application to open an Account.
All dealings between you and us are subject to:
- certain rules governing our registration as an overseas company in New Zealand and our conduct obligations in respect of the Stake Services (including under the Companies Act 1993, the Financial Markets Conduct Act 2013 and the Privacy Act 1993);
- the Rules, directions, requirements, customs and usage of and laws governing the relevant Exchange;
- the customs and usages of the market; and
- New Zealand and international Anti-Money Laundering and Counter-Terrorism Laws (to the extent applicable to the Account).
Certain New Zealand legislation will not apply to us. See clause 4.3 below in this respect.
3.6 You acknowledge that you are responsible for your own decisions and the outcomes that arise from the Transactions you undertake through the Service Providers (including any losses suffered by you as a result of those decisions).
3.7 If we accept your application for an Account, the Stake Service will be provided in accordance with this Agreement.
4. REPRESENTATIONS, WARRANTIES AND OBLIGATIONS
4.1 You represent and warrant that:
- the information you give us is valid, complete and correct;
- this Agreement will bind you in your personal capacity;
- you have authority to enter into this Agreement;
- your Instructions are lawful; and
- you are over the age of 18; and
- you are tax resident in New Zealand, and you will immediately notify us if you cease to be tax resident in New Zealand.
4.2 You agree that:
- you will utilise the Website and/or our Mobile Application to use the Stake Service, and will provide Instructions in relation to Transactions through the Website and/or Mobile Application;
- you will ratify and confirm any actions we carry out based on your Instructions;
- will pay us for any fees and charges which are reasonably incurred in implementing your Instructions and which are set out from time to time on our Website and/or within our mobile app; and
- you will inform us of any error or omission as soon as you become aware of it and you are responsible for taking necessary action to mitigate any potential loss from the error or omission.
4.3 You acknowledge and understand that certain regulated financial services provided to you are provided directly by the Service Providers in accordance with their terms & conditions (see links above) and not by Stake. Stake does not handle any payment or Securities on your behalf.
5. ACCOUNT OPENING REQUIREMENTS
5.1 Accounts can be opened by New Zealand resident individuals over the age of 18.
5.2 We reserve the right not to open accounts for any reason whatsoever.
5.3 You will adhere to the account opening process, and if applicable, confirm that we did not solicit, induce or market our services to you.
5.4 When you open an Account, you agree that subject to appropriate securities lending agreements, your Securities in your Account (whether US or otherwise) may be made available for Loans.
5.5 As part of the account opening process, you agree to participate in fully paid US securities lending with DriveWealth pursuant to the DriveWealth Master Securities Lending Agreement (‘MSLA’). You acknowledge that Stake facilitates the securities lending arrangement, that you and DriveWealth are the counterparties to the MSLA and that any Loans that occur are between yourself and DriveWealth. You acknowledge that your participation is completely optional and you can opt-out at any time without penalty if you do not want to make your securities available to be lent. You may opt out by opening your US Wall St Account and clicking on Settings > Trade Settings > Stock Lending Settings > Uncheck the ‘Stock Lending Income Program’ button
6. ACCESS TO STAKE SERVICE, ON WEB AND MOBILE APP
6.1 The Stake Service gives you the ability to execute Transactions through our Service Providers. To use the Stake Service, you will need to have access to the internet. You are responsible for maintaining any electronic equipment or software needed to give you access to the Stake Service or the Website or our Mobile Application.
6.2 We do not promise continuous, non-interrupted or fault free delivery of the Website and/or Mobile Application or the Stake Service.
6.3 Access to the Website and/or Mobile Application and the Stake Service may be unavailable or interrupted from time to time due to:
- technical or service delivery reasons;
- to conduct reasonable maintenance;
- regulatory or risk management reasons; or
- any other reason.
6.4 In addition, your access to the Website and/or Mobile App may be restricted or suspended as set out in Clause 21.
6.5 We may require you to use certain identity verification methods in order to login to your Account and access the Stake Service. It is your responsibility to protect your password and login credentials.
7. ACCOUNT OPENING
7.1 To open an Account, you must:
- complete an Application form;
- agree to be bound by these Terms & Conditions and the terms & conditions of our Service Providers;
- provide us whatever information we reasonably request in relation to your Account and the Stake Service; and
- successfully open accounts with our Service Providers (as required), as set out in this Agreement and their terms & conditions.
8. ACCOUNT APPROVAL
We may, in our absolute discretion, decline your application for an Account under this Agreement.
9. FUNDING AN ACCOUNT
9.1 Before you can provide an Instruction to buy Securities, you must fund your Account. Your funds will be collected via a payment gateway (POLi). Stake retains the discretion to allow purchase of Securities prior to any funding.
9.2 Subject to clause 9.3, you allow Stake to place a hold on any funds deposited for a period of up to Sixty (60) days prior to making it available for withdrawal. Where practicable, we will provide you with advanced estimated details of the hold period based on your funding method but are under no obligation to do so.
9.3 You allow Stake to place a hold on funds deposited via POLi (or any other funding method) until the funds have cleared at Stake, which could take up to four (4) business days. After this time, the cleared funds may be withdrawn by the customer.
9.4 You authorise Stake and any Service Provider, if required, to facilitate the transfer of funds deposited into your Account (which are not the result of a withdrawal from the US) to the US client account of Stake’s broker-dealer (DriveWealth, LLC or ‘DriveWealth’) (the ‘DriveWealth Account’).
9.5 You may also receive funds deposited into your Account by Stake as a result of promotions Stake may run from time to time.
9.6 Where you initiate a foreign exchange transfer on Stake, you authorise Stake to book a deal with FX partners, such as Airwallex (Airwallex Pty Limited) to convert your funds into US dollars. The applicable exchange rate will be the rate at the time the funds are received (rather than when they are sent by you). We may provide an estimated exchange rate at the time you initiate the transfer, however if you do not select an instant payment method (e.g. bank transfer), the actual exchange rate applied at the time that the funds are received may vary to the estimate provided.
9.7 Funds transferred will be sent to our FX partner Airwallex (Airwallex Pty Limited), and then remitted to your US client account in US dollars. Stake has contracted with its FX Partners directly and you are not entering into a contractual relationship with that FX Partner (unless explicitly disclosed).
9.8 You will be notified once the funds have cleared in the DriveWealth Account and are available to invest through Stake.
9.9 We may offer different payment methods and speeds to deposit funds to your Account. Instant funding deposits provide you with access to funds for the purpose of trading immediately after the confirmation of the funds transfer request, or the underlying funds have been received by Stake, depending on the payment method selected. Stake is not liable for any losses arising from funding delays.
9.10 All client funds are custodied in the US by the Custodian and cleared by ETC (Electronic Transaction Clearing) and DriveWealth LLC.
9.11 You confirm that the intention of using these funds is not for any improper or illegal activity.
9.12 If you fund your Stake Account directly (not explicitly within the Stake Service, but through your own channel) you acknowledge that Stake is not responsible or liable for any loss. Stake does not support third party deposits. You acknowledge that third party deposits may be rejected and sent back to source and Stake may take any other action in respect of your Account, including suspension and/or charging a fee.
10. WITHDRAWING FUNDS
10.1 You may withdraw funds from the US (subject to any hold period) to your local account at any time through instruction on the Stake website and/or our Mobile Application. The minimum withdrawal amount is $10 USD.
10.2 When you issue a withdrawal instruction, you authorise the transfer of your US dollar funds from the DriveWealth Account to your local bank account.
10.3 On receiving the withdrawal instruction, Stake will book a deal with its FX partners or one of DriveWealth’s FX partners, to convert your funds from US dollars into your local currency.
10.4 The US dollar funds will be sent by DriveWealth to Stake’s FX partners (such as Airwallex) and remitted to a Bank account nominated by you, which must be an account in your name. Stake has contracted with its FX partners directly and you are not entering into a contractual relationship with that FX partner.
10.5 Stake has the discretion to place a hold on funds deposited, in which case the funds may not be available for withdrawal for a period of up to Sixty (60) days from the date of deposit. The relevant hold periods will be provided to you in the Stake Service.
10.6 The name of the bank account which you nominate funds to be withdrawn to must match the name of your Stake Account.
10.7 Stake is not liable for losses arising from delays related to withdrawal of funds.
11. APPOINTMENT OF SERVICE PROVIDERS
11.1 You agree that we may from time to time appoint third parties to perform certain obligations under this Agreement. You must carefully read the terms & conditions for each of our Service Providers (as set out above). You are contracting directly with those Services Providers to provide their service to you.
11.2 We are not participants on an Exchange. Accordingly, we have appointed broker-dealer DriveWealth (a company that is registered with the U.S. Securities and Exchange Commission), and may appoint other Exchange participants to provide execution and clearing services for the Transactions. You must open an account with DriveWealth to facilitate this.
11.3 You agree and acknowledge that it is necessary for you to open accounts with the Service Providers in order to receive the Stake Service, and that we will arrange for applications for such accounts to be made to the Service Providers on your behalf.
11.4 You provide authorisation for us to disclose personal information to third parties involved directly in delivering the Stake Service.
11.5 You agree and acknowledge that opening a Stake Account involves usage of a Service Provider’s systems and is subject to that Service Provider’s terms and conditions (as set out above). Stake is not a party to any agreement between you and a Service Provider.
11.6 We may remove any Service Providers or appoint any Service Providers to perform any of our duties under this Agreement. We will exercise reasonable care in the selection of our Service Providers, and will notify you of such change within a reasonable time period.
11.7 You agree that we will not be liable for any losses sustained or incurred by you by reason of:
- opening an Account with a Service Provider; or
- any act, omission, delay, fees, costs or expenses of any third party appointed by you for the purpose of a Transaction, including for the purpose of clearing funds that have arrived in the US.
11.8 Our Service Providers may appoint other agents to provide services under this Agreement. You agree that we will not be liable for any losses sustained or incurred by you by reason of any act, omission, fraud, negligence, insolvency or delay of such persons.
11.9 You acknowledge and agree that, under their terms and conditions, the Service Providers have:
- placed limits on their liability;
- do not guarantee the availability of their services; and
- have rights in relation to the Securities that are purchased through them which they might be able to exercise contrary to your interests.
11.10 You acknowledge and agree to the Stake Disclaimers, to the extent they apply to you, and as they relate to Stake and our Service Providers.
12. APPOINTMENT AS AGENT
12.1 You appoint us and each of our respective agents, directors, officers and Service Providers (as applicable) severally (each referred to as ‘Agent’) as your Agent to do in your name everything necessary or expedient to provide the Stake Service, including to:
- execute and deliver any documents necessary to ensure that the registration details of your Securities contain your true name, registration address and other necessary personal information as set out in the Application Form or otherwise provided by you;
- apply for accounts on your behalf with any Service Provider;
- appoint one or more substitute Agents to exercise one or more powers given to the Agent, and to revoke such appointments.
12.2 You will inform us immediately if you withdraw the authority set out in this Clause 12.
13.1 We are not a tax agent or tax intermediary.
13.2 Nor do we provide financial advice for the purposes of the Financial Markets Conduct Act 2013 (as amended by the Financial Services Legislation Amendment Act 2019) in respect of the Stake Service or otherwise. Stake is licensed to provide financial advice, however we do not currently provide that service.
13.3 We recommend that you obtain professional financial, legal and taxation advice before entering into any financial investment decision.
13.4 As part of the Stake Service, you acknowledge that Stake is not providing a “financial adviser service” or a “broking service” for the purposes of the Financial Markets Conduct Act 2013 and that Stake is not the offeror of any Securities .
13.5 You are responsible for any investment or trading decisions made by you with respect to your Account and we will not be responsible for determining the suitability, appropriateness or advisability of your Instructions, any Transaction or Currency Conversion.
13.6 We do not guarantee the performance of any Securities.
13.7 You must only provide us with Instructions and enter into Transactions for your own benefit and will not use your Account on behalf of third parties (unless agreed with us).
13.8 To the extent you require further information about the relevant New Zealand legislation that may apply, or require specific advice, please contact your legal and/or financial adviser (as appropriate).
14. YOUR INSTRUCTIONS
14.1 Once you have opened an Account, you may place Instructions to buy or sell Securities or arrange a foreign currency transaction. If any of your Securities are on Loan when you place Instructions to sell them, this will also terminate the Loan.
14.2 Any Instructions:
- must be given to us through the Website and/or our Mobile Application; and
- are subject to the Rules and this Agreement.
14.3 You authorise us and our Service Providers to:
- act on any Instructions we genuinely believe are given by you in accordance with this Agreement; and
- communicate with you about your Account and the Stake Service electronically.
14.4 We are entitled to assume that any Instructions given via the Website or Mobile Application using your account details are from you. You are bound by any such Instructions.
14.5 As part of executing your Instructions, you may be charged a brokerage fee by us and any nominated Service Provider at the rates we set, and any other applicable Fees and Charges in each case as specified on the Website and/or our Mobile Application. These Fees and Charges may change from time to time and will differ depending on whether a fractional or whole interest in a Security is being purchased. Any changes to the relevant Fees and Charges will be updated on the Website and our Mobile Application.
14.6 You acknowledge that the price at which the Instructions are executed may be different from the price the Security is trading at the time you give your Instructions.
14.7 We do not guarantee that your Instructions will be executed:
- in full or in part;
- by a certain time; or
- at a particular price.
15.1 When you provide Instructions, you acknowledge that:
- You are able to pay for any Securities purchased, and any liabilities that arise;
- We will only permit trading in Securities where you have sufficient funds available for trade; and
- You will pay all associated duties or taxes before the settlement time and date specified.
15.2 We will use our reasonable endeavours to arrange for the execution of your Instructions by the relevant Service Providers. You will receive Confirmation upon execution.
15.3 We will not be responsible for any losses that you may incur as a result of any delay or error in the transmission or execution of your Instructions, and you acknowledge that international time differences and timing of public holidays or other similar observances may lead to delays in receipt of Instructions and execution by us and our Service Providers.
15.4 Instructions to buy or sell Securities may only be valid for terms that we determine from time to time and within the maximum terms allowed on the relevant Exchange.
15.5 If you request variation to or cancellation of a Transaction recorded by us, the Transaction will not be varied or cancelled until we notify you that your request has been accepted.
15.6 You will be liable to pay the applicable market fees for your trades.
15.7 You are responsible for any liability for contracts arising from your Instructions.
15.8 You will indemnify us against all loss, expense or any other liability in relation to the execution of your Instructions, except to the extent resulting from or caused by our negligence, fraud or dishonesty.
15.9 You acknowledge that if you:
- initiate a chargeback against a Card funding initiated by you; or
- fail to clear funds deposited via POLi or any funding source,
we have the right to suspend your account, place a hold on your assets and facilitate trades on your behalf to recoup any losses incurred by Stakeshop Pty Ltd.
15.10 You acknowledge that the website is only accessible on desktop devices and that the Mobile App will allow you access to the Stake Service on Mobile Devices.
15.11 You will be liable for losses caused by unauthorised Transactions where we can prove that you contributed to losses on the balance of probability:
- through fraud or breach of the security requirements; or
- from unauthorised Transactions because you unreasonably delayed notifying us after realising that the security of your Account had been breached.
If you are liable for losses under this clause, you will be liable for the actual losses that occur between the time you realised, or should reasonably have become aware, that your Account’s security had been breached, and when you actually let us know.
15.12 You acknowledge that Stake has the right to claim any reasonable expenses and costs (legal or otherwise) in relation to resolving any claim against you or us (by you), whether resolved or not. In relation to this clause, you acknowledge that if a judgement is made against you in relation to such costs and expenses, you will be liable for those costs and expenses incurred by us (to the extent required under the judgement or at law).
16. REFUSING YOUR INSTRUCTIONS
16.1 We and our Service Providers reserve the right to refuse to:
- respond to a request for information; and/or
- accept any Instruction.
16.2 Notwithstanding the fact that you can only place orders to purchase shares once you have sufficient cleared funds, we and our Service Providers can decline to act on your behalf or accept your instructions if:
- you do not provide sufficient cleared funds or do not maintain sufficient funds in your Stake Account to cover the cost of instructions (or any ancillary fees) to buy Securities before the Instruction is executed;
- we reasonably believe that your Instructions are unclear, ambiguous or incomplete; and/or
- we believe that your Instructions breach (or may breach) this Agreement, any law, statutory requirements, or other regulatory requirements, including any Rules or regulations of the relevant Exchange.
We may also cancel any Transaction or generally restrict your ability to trade Securities through your Stake Account. We do not need to provide any reason for taking such action. We will notify you, as appropriate, of any such refusal or cancellation.
16.3 A Service Provider may also refuse to respond to a request or accept an instruction in accordance with their terms & conditions.
17. FAILURE TO SETTLE
17.1 If you do not:
- comply with the obligations set out in this Agreement or the Rules relating to a Transaction; and
- make full payment or good delivery for your Transactions by the settlement date, you authorise us, our directors and employees or agents (as your Agent) to:
- sell on your behalf any Securities that are the subject of the Confirmation, outstanding in your Account or in our control or possession at your risk and expense, including brokerage, stamp duty and other costs; and
- apply the proceeds to reduce your liability to us.
17.2 Where we have incurred additional costs, we will either set off or direct debit funds from you or demand payment from you in writing.
17.3 We reserve the right to liquidate your account to recover any losses or expenses incurred and suspend your access to Stake in relation to a chargeback on a Card funding transaction or in relation to the non-settlement of any funding from POLi or another funding service available on Stake.
18.1 You authorise us to:
- give you a single Confirmation for a series of Transactions rather than individual Confirmations for each Transaction in the series, and
- accumulate Transactions in a particular security across multiple Exchanges on a single Confirmation and specify the volume weighted average price for those Transactions.
18.2 You acknowledge and agree that this Agreement is evidence that you have provided the authorisation under clause 18.1, and that this authorisation continues by you continuing to place orders with us.
18.3 You authorise us to send electronic Confirmations to your email address as notified to us from time to time.
18.4 You agree that if we issue you with a Confirmation, it constitutes evidence of the Transaction unless it includes an error. The Confirmation will be subject to the correction of errors and omissions.
19. YOUR ACCOUNT & SECURITIES
19.1 Your Securities and Currencies will be held by a Custodian. You will retain legal and beneficial ownership of the Securities unless they are on Loan, in which case legal ownership transfers to the borrower and you will retain contractual and economic ownership of the Securities on Loan.
19.2 Your money may be passed by one Service Provider to another Service Provider. Your money may also be transferred to other persons, such as an Exchange. Where such a person is located outside New Zealand, the legal and regulatory regime applying to such a person will be different to that of New Zealand and, in the event of failure of such a person, this money may be treated in a different manner from that which would apply if the money was held by such a person in New Zealand.
20. CURRENCY CONVERSION
20.1 You appoint our Service Provider to execute any Currency Conversions relating to your trades in International Securities.
20.2 You agree that you will bear the foreign exchange risks of a Currency Conversion, including but not limited to, the risks of cash held, or of interest or other income payments received, of expenses, taxation or other liabilities incurred in Currencies other than New Zealand dollars and of exchange controls or other laws that may prohibit or impose costs on the Currency Conversion and that we will not be liable for any loss suffered by you as a result of a Currency Conversion or the timing of a Currency Conversion.
20.3 When you place an order, you agree to accept the indicative quote for the Currency Conversion. You agree to exchange currencies at a rate, which may be different from the estimated rate, depending on market movements, and which includes the Service Provider’s fees, charges and margins for executing the Currency Conversion.
20.4 Not all cross-currency transactions are supported. Some Currency Conversions may require an intermediate transaction to/from New Zealand dollars or another currency.
20.5 You acknowledge that Currency Conversions applied to certain payments may incur a spread, and other fees and charges, which will be payable to the Service Provider.
20.6 You agree that Currency Conversions incur fees that may be collected by us or our Service Provider(s) in exchange for converting your funds between New Zealand Dollars, US Dollars or any other currency.
21. RESTRICTION OR SUSPENSION OF ACCESS OR CLOSURE OF ACCOUNT
- 21.1 Subject to any applicable law, we can immediately close your Account or restrict or suspend your access to:
- 21.2 Our Service Providers may also restrict or suspend certain services provided to you via Stake in accordance with their terms.
- 21.3 We may exercise our right to close, restrict or suspend in clause 21.1 without prior notification for any reason, without limitation including if:
- 21.4 If we exercise our right under Clause 21.1, we may tell you the reason for the restriction or suspension (and any conditions) as soon as is reasonably possible (unless prohibited for legal or regulatory reasons). We do not need to tell you before restricting or suspending your Account access or closing your Account.
- 21.5 If we close your Account, you authorise us to take the following actions:
22. ANTI-MONEY LAUNDERING AND COUNTERING FINANCING OF TERRORISM
22.1 You acknowledge that we may be required for anti-money laundering and countering financing of terrorism purposes, to verify your identity before we can provide you with the Services. You must provide all information to us which we reasonably require to adhere to the relevant jurisdictional requirements in order to manage money-laundering or terrorism financing and economic and trade sanctions risk or to comply with any laws or regulations in New Zealand or any other country. When applying for a trading account, you give us consent to provide this information to a verification service or other Service Provider who will check your personal information against sources which may include databases of driver’s licence and passport details.
22.2 You must provide all information to us which we reasonably require to adhere to New Zealand and foreign jurisdictional requirements in order to manage money-laundering or financing of terrorism and economic and trade sanctions risk, or to comply with any laws or regulations in New Zealand or any other country.
22.3 You agree that we may delay, block or refuse to process any Transaction and give immediate notice to suspend or terminate the Stake Service without incurring any liability if we suspect that a Transaction:
- may breach any laws or regulations in any country;
- involves any person that is sanctioned or is connected, directly or indirectly, to any person that is sanctioned under economic and trade sanctions imposed by New Zealand or any other country, or
- may directly or indirectly involve the proceeds of, or be applied for the purposes of, unlawful conduct.
22.4 You declare and undertake that the processing of any of your Instructions will not breach any laws or regulations in New Zealand or any other country.
22.5 When applying for an account and accepting our terms and conditions you give consent for Stakeshop Pty Ltd to disclose your name, residential address and date of birth to a credit reporting agency and ask the credit reporting agency to provide an assessment of whether the personal information so provided matches (in whole or in part) personal information contained in a credit information file in the possession or control of the credit reporting agency to assist in verifying your identity for anti-money laundering and countering financing of terrorism purposes, or any similar law. The credit reporting agency may prepare and provide Stakeshop Pty Ltd with such an assessment and may use your personal information including the names, residential addresses and dates of birth contained in credit information files of you and other individuals for the purposes of preparing such an assessment. If you disagree with having your identity verified by a credit reporting agency, please select another contact Stakeshop Pty Ltd so that we can discuss other options with you.
23. CORPORATE ACTIONS
23.1 You will retain legal or beneficial ownership (as applicable) of any Security, unless it is on Loan. While any of your Securities are on Loan you will not be able to exercise rights related to Corporate Actions. You may opt-out of Stock Lending prior to a Corporate Action if you wish to participate, for example if you would like to vote in an upcoming shareholders meeting. Accordingly, it is your obligation to fulfil any voting or other requirements which attach to these financial products (‘Corporate Actions’).
23.2 If we become aware of any matter which may require you to take a Corporate Action, we may inform you of this, but are not obligated to. It is important that you ensure we have accurate personal details for you to allow us to do this.
23.3 By entering into this Agreement, you agree and acknowledge that decisions relating to the Corporate Actions you make are separate to the discretions which will be exercised by us under the Agreement.
24.1 As the taxation implications when investing in Securities which are international are complex and different from investing in Securities which are in your local jurisdiction, you should seek advice from a taxation professional to evaluate whether an investment in international Securities is appropriate to your particular financial circumstances and to ascertain whether you are entitled to claim back any withholding taxes.
24.2 Securities may attract withholding taxes on income and cash dividends in some jurisdictions. All withholding tax is deducted in the applicable Currency of the jurisdiction in which the tax applies.
24.3 The Custodian will withhold tax at the rate applicable under the local laws. The rate may be different from treaty rates agreed to between New Zealand and the applicable foreign country.
24.4 We will inform you of how much tax was withheld. However, we reserve the right not to make or support any application to reclaim the withheld tax on the Securities. We recommend you consider how this may impact your particular financial circumstances.
24.5 You may be liable for tax on foreign sourced income and may be required to include this information in your New Zealand tax return. New Zealand residents holding interests in certain types of overseas entities may be subject to New Zealand tax on deemed income from those entities, regardless of whether it is distributed or not, under the controlled foreign company (CFC) and foreign investment fund (FIF) regimes. These regimes establish methods to calculate any such income and impose New Zealand tax on it.
24.6 We should not be liable for any tax implications and it is your responsibility to ensure that your details are up to date with the necessary regulatory body. We will assist with the filing of W8BEN and similar forms through our Service Providers, but cannot be responsible for any adverse implications.
24.7 If there is a dividend payment or other distribution made whilst your Securities are on Loan, you will be paid an equivalent cash payment. However, generally Loans will be recalled prior to such payments, in which case you will receive dividends or other applicable distributions as usual. This income may attract withholding tax which you are liable for.
Our Service Providers will hold any funds received on your behalf in accordance with the laws of the jurisdiction in which those monies are held. We or our Service Providers may retain any interest paid on such funds, as well as any interest paid on collateral for Loans.
26. FULLY PAID SECURITIES LENDING (STOCK LENDING)
26.1 We are entitled to any revenue from our Service Providers generated by Loans.
26.2 We may arrange payment of a percentage of the revenue earned from Loans to you if your Securities are the subject of a Loan in any given month. The amount you are paid may vary from time to time at our sole discretion. For more information about how payment works, see Stock Lending Explained.
26.3 You will only be eligible for payment for the Loan of your Securities from the date the relevant Securities settle with the Custodian, which is two (2) business days from the date the Transaction is first lodged (inclusive), until the date the Loan is terminated.
26.4 In the event that the borrower defaults on any Loan of your Securities, you authorise us to take any reasonable actions on your behalf (whether as agent or otherwise) and you assign to us your contractual rights to remedies in respect of a default on any Loan(s) by the borrower. We will only take such actions for your benefit for the purpose of recovering your losses resulting from a default by the borrower.
26.5 We will provide you with information concerning any Loan of your Securities via the Stake Mobile Application and Website.
26.6 You must notify us immediately if you at any time hold Securities that are the subject of a US employee benefit plan.
27.1 Information presented on our website and/or Mobile Application has been obtained from sources believed to be true. Neither we nor our associates including all officers, directors, employees, agents, third parties, service providers, suppliers or relevant Exchanges:
- make any warranty concerning the accuracy, or reliability, or completeness of the information, on or in relation to the Application. The accuracy, timeliness or completeness of information is not guaranteed by us or any third party; or
- accept any liability for any claim, loss or damage arising from the display or use of information on the Application. In particular, we and our associates are not liable for any omission, mistake, delay or interruption in providing the information or the information being inaccurate, incomplete, or otherwise misleading, except to the extent resulting from or caused by our negligence, fraud or dishonesty.
27.2 Service Providers, including third party suppliers may assert proprietary interests in the information or intellectual property presented.
27.3 If we provide links to other applications or provide or make available (including by way of a referral) general research, information or recommendations provided by other persons, we are not liable to you if you rely on any research, information, advice or recommendation provided by such applications, persons or service providers.
27.4 The information supplied is for your personal and private use only. You must not:
- reproduce, broadcast, otherwise distribute or allow any unauthorised third party to access the information;
- use the information for any unauthorised or illegal purpose; or
- procure or assist another person to do an act prohibited by this clause.
27.5 If we suspect you are in breach of clause 27.4, we may immediately suspend your use of the Stake Service.
28. INTELLECTUAL PROPERTY
28.1 You acknowledge that Intellectual Property Rights, including graphics, logos, trade marks, distinctive brand features, designs, text, icons, the arrangement of them, sound recordings and all software relating to the Website and Mobile Application, and relating to the information and derived information we provide (including information transmitted electronically), remain vested in us, its creator, or other Service Providers as applicable.
28.2 Such Intellectual Property Rights must not be used in any manner without the prior consent of the owner. If improper or unlawful use of materials under Intellectual Property Rights comes to your notice, you must notify us immediately.
28.3 You may view and use the Website and Mobile Application in accordance with the Agreement, but you may not in any form or by any means reproduce, modify, distribute, store, transmit, publish or display within another website or create derivative works from any part of the Website or Mobile Application without prior written consent of Stake, or other Service Providers, as applicable.
28.4 You may not modify or copy the layout or appearance of the Website or Mobile Application nor any computer software or code contained within, nor may you decompile, disassemble, reverse engineer or otherwise attempt to discover or access any source code related to the Website or Mobile Application.
29.4 You agree to keep your password and username required to access your Account and the Website and/or Mobile Application confidential. Any actions taken within your Account will be deemed to be taken by you, as the authorised user of the Account. We cannot be responsible for any loss due to unauthorised access where the user has failed to take adequate steps to protect their account or shared information.
30.1 Either party may provide notice to the other party by electronic communication such as email. Notices sent by electronic communication will be treated as having been received one hour after being sent.
30.2 You may request that we provide notices to you by post. If you do so, the notice will be treated as having been received two business days after posting. If we have your email, we will use this as the default communication and reserve the right to use email exclusively.
30.3 You must ensure that:
- you provide us with a valid email address;
- the details you provide to us remain up to date; and
- you notify us of any change to your details.
31. OUR LIABILITY
31.1 We do not exclude or limit the application of any statute under New Zealand law, where to do so would contravene the statute or cause any part of this Agreement to be void.
31.2 We, our Directors, Service Providers, officers or agents, are not liable for any actions, claims, demands, proceedings, liabilities, losses, damages, costs and expenses except to the extent resulting from or caused by our negligence, fraud or dishonesty due to:
- us acting upon your instructions;
- refusal to act on your instructions;
- your default;
- any legal action;
- compliance with a direction, request or requirement;
- error, omission, non-receipt, or invalidity in your Instructions;
- problems involving the relevant Exchange, market participant, and or/failure of an Exchange, including any error, omission, interruption, deletion, defect, delay in operation or transmission, or any other factor;
- any events or circumstances that we cannot reasonably control;
- any Force Majeure;
- any delay, interruption, omission, failure, error or fault by us in passing on and executing your Instructions;
- market movements and other risks associated with the trading and Loan of Securities, including a borrower of Securities being unable to return such Securities;
- suspected or actual manipulative trading, including insider trading, false or misleading trading, market rigging and market manipulation; or
- faults, errors, defects, failures in the Website, the Mobile Application, other computer systems, or loss of access to your Account.
31.3 Subject to any rights implied by law which cannot be excluded by agreement, we and our Service Providers, our officers, employees and agents:
- make no warranty for merchantability or fitness for purpose with respect to the Stake Service, including the Services provided by the Service Providers;
- exclude liability for any losses arising directly or indirectly out of:
32. YOUR LIABILITY
32.1 You will be liable for losses caused by unauthorised Transactions where we can prove that you contributed to losses on the balance of probability:
- through fraud or breach of the security requirements, or
- from unauthorised Transactions because you unreasonably delayed notifying us after realising that the security of your Account had been breached.
32.2 If you are liable for losses under clause 32.1 you will be liable for the actual losses that occur between the time you realised, or should reasonably have become aware, that your Account’s security had been breached and when you actually let us know.
33.1 You indemnify us, our Service Providers, our officers, employees, agents and our related bodies corporate for any losses arising directly or indirectly out of:
- your use of the Stake Service;
- our acting on your Instructions;
- your failure to comply with this Agreement;
- your failure to comply with any legislation or Rule, whether foreign or domestic; and
- any of your acts or omissions or that of a person acting on your behalf.
33.2 You agree to indemnify us, our Service Providers and each of our respective members and associates, and the directors, officers, agents of either us (‘Indemnified Parties’) against:
- any losses, liabilities or expenses incurred by you arising out of, or in connection with, any of the Indemnified Parties acting under, or in connection with, this Agreement except to the extent that any loss, liability, or expense is caused by the negligence, fraud or dishonesty of any Indemnified Party;
- any losses, liabilities or expenses incurred by any Indemnified Party arising out of, or in connection with, a breach by you of any of your obligations under this Agreement; and
- any losses, liabilities or expenses incurred by any Indemnified Party arising out of, or in connection with, any incorrect or misleading representation or warranty given by you under this Agreement.
33.3 You agree that the risk and liability for unauthorised instructions or fraud lies with you alone, and that you will indemnify us from all loss, costs and expenses arising from such unauthorised instructions or fraud, except to the extent resulting from or caused by our negligence, fraud or dishonesty. We hold the benefit of this indemnity on trust for each Indemnified Party.
33.4 Your liability to indemnify us will be reduced proportionately to the extent a negligent or fraudulent act of ours contributed to the loss.
33.5 Each indemnity in this Agreement is a continuing obligation, which is separate and independent from your other obligations, and survives termination of this Agreement.
33.6 We do not need to incur expenses or make Transactions on your behalf before enforcing our right of indemnity under these terms and conditions.
34.1 You may not assign, transfer or novate any of your rights or obligations under this Agreement without our written consent, which may be withheld.
34.2 We may assign, transfer or novate any or all of our rights or obligations under this Agreement by providing ten (10) Business Days’ written notice to you.
34.3 In the event of an assignment, transfer or novation under this clause:
- You will have the same rights and obligations under this Agreement against the new party as you had against us prior to the assignment, transfer or novation;
- The new party has the same rights and obligations against you that we had prior to the assignment, transfer or novation;
- We and the Service Providers are released from any obligations arising on or after the date of the assignment, transfer or novation.
35.1 This Agreement remains in force until it is terminated or we are no longer authorised to provide the Stake Service.
35.2 Either party may terminate this Agreement:
- by sending a written notice (including via email) to the other party terminating the Agreement. Termination will take effect thirty Business Days after the notice is received.
- immediately by written notice in the event of insolvency, bankruptcy, winding up, death or incapacity of the other party.
35.3 We may terminate the Agreement if:
- You fail to pay any amount you are liable to pay under this Agreement;
- You breach any term of this Agreement, or the
- We reasonably believe that allowing you continued access to the Stake Service would result in us:
- We reasonably believe that your Account is being used in connection with a breach of the Anti-Money Laundering and Countering Financing of Terrorism Act 2009 (to the extent applicable) or any similar law in any jurisdiction.
36.1 If any provision of this Agreement is unlawful, void or unenforceable, then that provision shall be deemed severable from the remaining provisions and shall not affect their validity and enforceability.
37. DISPUTE RESOLUTION
37.1 You have access to Financial Services Complaints Limited (FSCL), a formal dispute resolution scheme in New Zealand by contacting FSCL on 0800 347 257 or firstname.lastname@example.org. This dispute resolution scheme is in addition to recourse or the ability to make claims against Stake in accordance with this Agreement or under common law (or any other legal right afforded to you).
37.2 In the event of a question, dispute or difference that arises in connection with this Agreement or any Transaction (‘Dispute’), all parties must use all their reasonable endeavours to resolve the Dispute.
37.3 If we cannot resolve a dispute to your satisfaction, depending on its nature, you can seek recourse:
- Under common law or any law or legal right afforded to you;
- through DriveWealth, in accordance with its terms and conditions; and
- through our other Service Providers, in accordance with their terms and conditions
38. GOVERNING LAW
This Agreement shall be governed by and construed in accordance with the laws of New Zealand. The parties agree to irrevocably submit to the non-exclusive jurisdiction of the courts of New Zealand.