Document ID: chunk:federal_register_of_legislation:F2023C00928:reg:8:p9
Version: federal_register_of_legislation:F2023C00928
Segment Type: reg
Provision Reference: reg 8 (pt 9/34)
Character Range: 34003–36969

perform its obligations under the MDA contract and this section honestly and with the degree of care and diligence that a reasonable person would exercise if they were in the licensee's position in providing the MDA service to the client; and
                  (b) act in the best interests of the client in performing its duties in relation to the MDA services and, if there is a conflict between the interests of the client and its own interests in performing those duties, give priority to the client's interests; and
                  (c) not use information that the licensee has through providing the MDA services to gain an improper advantage for itself or any other person or to cause detriment to the client; and
                  (d) comply with:
                     (i) the investment strategy set out in the MDA contract with the client unless otherwise agreed in writing by the client; and
                     (ii) any representations about how it will provide MDA services that are included in a Financial Service Guide given to the client unless otherwise agreed in writing by the client; and
                  (e) compensate the client for any loss because of any act or omission of any agent or other person engaged in connection with the MDA service other than an act or omission of an external MDA custodian or external MDA adviser or a person acting on behalf of either, as if the acts or omissions were acts or omissions of the licensee.
              (3)  The licensee must comply with the provisions of the MDA contract that subparagraph (1)(c)(v) and subsection (2) require.
              Note:  This obligation does not affect in any way the licensee's contractual obligation to comply with all the terms of the MDA contract, nor any remedy a client may have for any breach of the contract.
Investment Program
              (4) The licensee must ensure that each MDA contract contains an identifiable part (investment program) that is entitled "Investment Program" prepared by the licensee or an external MDA adviser.
              (5) The licensee must ensure that the investment program includes:
                  (a) an opinion from the licensee or an external MDA adviser that the MDA contract is suitable for the client's relevant personal circumstances and the basis for that opinion; and
                  (b) an investment strategy containing sufficient details that a person would reasonably require for the purposes of making a decision, as a retail client, on whether the investment program is suitable for the person; and
                  (c) warnings that the MDA contract:
                     (i) may not be suitable for the client if the client has provided limited or inaccurate information relating to the client's relevant personal circumstances; and
                     (ii) may cease to be suitable if the client's relevant personal circumstances change; and
                  (d) if the client portfolio assets may