Foreign Exchange Services 
Version 4.0 11/2023

Our Services in Australia are provided by HiFX Australia Pty Ltd (trading as ‘Xe’, ‘Xe.com’ or ‘Xe Australia;) (Xe Au), which is authorised by the Australian Securities and Investments Commission (ASIC) as an Australian Financial Services Licensee (AFSL No. 240917) for the provision of certain financial services. You can obtain more detail on Xe Au’s licence from ASIC’s professional registers.

These terms and conditions of business (“Our Terms”) explain your responsibilities to us and our responsibilities to you, how and when the contract between us and you is formed and how it can be terminated. They complement our Product Disclosure Statements (PDS) and Target Market Determinations (TMD), which you should also read and can be located on Our Website.

We take our responsibilities seriously and expect the same from you. We therefore ask you to read Our Terms carefully, and in their entirety, as they will be incorporated into contracts formed between Xe Au and you. You should obtain legal and financial advice if you are unsure of any part of Our Terms before agreeing to them. The same applies for the relevant PDSs and TMDs. Sometimes third parties earn commission from Xe when they refer customers to our business. If you were referred to Xe by a third party, then you acknowledge that the third party may have received a commission from Xe.

In particular, your attention is drawn to the following clauses:

a) Clause 4.1 emphasises that any information provided by us is not to be relied upon as personal advice such as advice tailored to your circumstances. Rather, your decisions regarding any of Our Services must be based upon independently obtained financial, legal and taxation advice and your own skill and judgement;

b) Clause 6 outlines Your responsibilities when accessing Our Services. We do not allow Our Services to be used purely for investment or speculative purposes, for example profit-making;

c) Clause 6.2 outlines statutory obligations regarding how we deal with funds received from you. If you are a Wholesale client, please be aware that the same protections may not be afforded to you, as further described in clause 6.2;

d) Clause 9.1 sets out Our termination rights, and clause 9.3 sets out Your termination rights;

e) Clause 9.6 sets out the consequences which will apply following termination of an FX Contract prior to the originally agreed date or prior to settlement; and

f) Clause 10.1 describes how we limit our liability to you, and clause 10.3 describes your indemnity to us for certain Losses in limited circumstances.

Our Terms apply to Our Services which are as follows:

a) Foreign Exchange Trades ("Trade"), whereby you send us money in one currency ("Sale Currency") in exchange for us sending money to a nominated account in another currency ("Purchase Currency");

b) Forward contracts;

c) FX Options, which are only offered to Wholesale clients; and

d) the Account, which you must have with us for the management of Trades and FX Options.

 

1. DEFINITIONS

1.1 In Our Terms the following words have the following meanings:

 

1.2 All references in Our Terms (unless otherwise stated):

(a) to a person or persons shall include any natural person, company, firm, partnership, trust, public body or other organisation;

(b) to “clauses” are to clauses of Our Terms;

(c) to any legislation (including statutes, statutory instruments, statutory provisions or regulations) shall include them as amended or re-enacted from time to time;

(d) made in the singular shall include the plural and vice versa; and

(e) to "including" does not imply any limitation;

(f) to a time of day is to Sydney time, unless otherwise stated.

All headings used in Our Terms are for ease of reference only and shall not affect the interpretation of Our Terms.

 

2. CHANGES TO OUR TERMS

2.1 We may reasonably amend Our Terms from time to time, for example in order to comply with changes in the law or regulatory requirements or due to changes in market conditions.

2.2 Subject to clause 2.3, if we make any change to Our Terms, we will only do so by giving sufficient notice in writing to you in accordance with clause 15.6 and/or informing you of the change by telephone and/or by placing the revised version of Our Terms on Our Website. If you wish to receive a written copy of Our Terms by post, we will send a copy to the postal address we hold for you upon request.

2.3 If such change is material and/or detrimental to you, we will provide you with not less than 30 days’ prior notice of the change. There may be instances where we cannot give you prior notice, for example, where we are instructed by a regulator to implement a change immediately. In this case, we will notify you of the change as soon as we can.

2.4 Subject to clauses 2.2 and 2.3, these changes will be effective and binding when issued. Any changes that we make to Our Terms will not apply retrospectively to outstanding Requests, Trades and FX Options, unless otherwise required by law or regulatory requirements. However, you will be bound by the amendments when you enter into subsequent transactions. All changes are deemed to be accepted by you if you continue to use Our Services.

 

3. LANGUAGE AND APPLICABLE LAW

3.1 Our Terms are written in English, which shall also be the language of each FX Contract. All communications between us shall be made in English.

3.2 Our Terms are governed by and shall be interpreted in accordance with the laws of New South Wales, Australia. In relation to any dispute between us arising from or relating to Our Terms or any FX Contract, both parties submit to the non-exclusive jurisdiction of the courts of New South Wales, Australia.

 

4. FINANCIAL MARKETS

4.1 No personal advice

(a) We may provide you with publicly available market information or advice relating to the mechanics of a transaction, if you ask us to. However, we do not provide personal advice (for example, whether to proceed with, or not proceed with a Trade, FX Option or Payment, or in respect of the timing of any Trade, FX Option or Payment). You should not treat any information we provide to you as personal advice, because we do not take into account your personal or corporate situation, experience, financial objectives or circumstances.

(b) For clarity, Xe Au does not provide personalised advice to Retail Clients. Transactions for Retail Clients shall be conducted on an ‘execution only’ basis.

(c) You represent and warrant that you have sought independent financial, legal and taxation advice as you consider appropriate prior to entering any FX Contract with us. You also warrant that you have carefully considered whether entering into specific foreign exchange transactions are appropriate in terms of your own experience, financial objectives, needs and circumstances.

(d) It is entirely up to your own skill and judgment to decide whether to make a Request and entirely for you to decide whether a Request, a particular Trade or FX Option, and your instructions to us, are suitable for you, your circumstances and your purposes. If you are unsure, the responsibility is on you to seek independent legal and/or financial advice.

(e) In making your decision to enter any FX Contract, you warrant that you will not place any reliance on market-related information provided by us from time to time (either on Our Website or by our team members) or our opinion of the merits or otherwise of any Trade, FX Option, taxation matter or matters concerning any foreign exchange financial products or markets or other matters of whatever kind. Before you make such a decision, you should read our relevant PDS and TMD.

4.2 Timing

(a) The banks through which payment of a Trade or FX Option is to be effected have fixed cut off times for the receipt and dispatch of electronic payments. We are not responsible for and have no liability for any delay in or failure of any Trade or FX Option which results from a late arrival of funds or from late receipt of instructions relative to the cut off times, except where any delay in or failure of any Trade or FX Option is caused or contributed to by our acts or omissions.

(b) We are unable to make payment of a Trade or FX Option if you fail to provide your relevant bank details. We are also not responsible for the delay, or non-receipt of Requests. Nor can we be responsible for Requests which are unclear, or later contradicted. It is entirely your responsibility to provide clear and unambiguous Requests to us.

4.3 Bank delays and errors

(a) We accept no responsibility for, and will have no liability in respect of, any delay, error, omission or withholding of payment by a bank or intermediary bank(s), except where any delay, error, omission or withholding of payment was caused or contributed to by our fraudulent or negligent acts or omissions or wilful misconduct. We accept no responsibility for and will have no liability in respect of delays in onward payment that may be attributable to factors outside of our control, including (without limitation) bank(s) errors, omissions, or delays. This includes, but is not limited to, any failure to establish an account or conduct the payment and any withholding of, or delay in processing, a payment by a bank or intermediary bank(s).

(b) A bank may also be required to (among other things) delay, block or withhold payment, without providing notice or incurring any liability, if processing the payment may contravene the AML and CTF Laws and/or other laws. This may arise if a bank is not satisfied with information about you, as our client, the recipient or the purpose and nature of the payment.

 

5. FORMATION OF CONTRACT

5.1 Each complying Request is an irrevocable offer to us by you to enter into a Trade or FX Option.

5.2 If you Request to enter into a FX Option, additional terms set out in Schedule 1 will apply.

5.3 We may, in our sole discretion, refuse to enter into a Trade or FX Option at any time, without providing any reason. Examples of when we may refuse to enter into a Trade or FX Option include where we are required to do so under AML and CTF Laws or as described in clause 8.2. We will have no liability to you for any Loss in relation to any Request or Service that we have not accepted or agreed to provide.

5.4 We also reserve the right not to act on any Request, where the amount of the Trade or FX Option does not comply with any transaction thresholds or limitations, as referred to in clause 6.13.6.

5.5 A Request will only result into a FX Contract upon our acceptance of the Request, as follows:

(a) if you are instructing us using the Online Services, upon confirmation of acceptance which will be displayed on the Online Services system through which the Request was placed. The Trade or FX Option placed through our Online Services is effective from the date and time we specify in the Acceptance;

(b) if you are instructing us by email or phone, upon verbal acceptance by one of our team and/or in writing by email (any such verbal confirmation will be followed by written confirmation in the form of a Contract Note); and

(c) if you are instructing us by email, when we process your email Request (which will be followed by a Contract Note).

5.6 Once formed, Trades and FX Options cannot be cancelled or altered by you. However, upon your Request, we may agree to cancel or vary a Trade or FX Option (charges may apply and we will inform you of these charges at the time).

5.7 Details of Trades and FX Options will be communicated to you on Acceptance and confirmed to you in writing (which includes electronically) in a Contract Note. The failure to provide you with a Contract Note will not prejudice the rights or obligations of either party under any FX Contract.

5.8 You agree to check each Contract Note as soon as practicable after receipt and to notify us within a reasonable timeframe of any errors or omissions in the Contract Note. Unless you notify us of any error or omission within 24 hours, you will be deemed to have ratified and accepted the contents of the Contract Note (except where we accept there is manifest error in the Trade or FX Option details, and these could not reasonably have been identified by you from the contents of the Contract Note).

5.9 Each Trade, FX Option and FX Structured Option is subject to a separate FX Contract and is issued at our sole discretion (acting reasonably). Each FX Contract incorporates Our Terms (as amended by us from time to time in accordance with clause 2).

5.10 For the avoidance of doubt, other entities forming part of the Xe Group are our affiliates and not a party to Our Terms or any FX Contract.

5.11 If you fail to provide a timely, complete, accurate and legible instruction, you irrevocably grant Xe Au the authority and direct you to place the Contract Funds in a Holding Balance pending receipt of information necessary to complete the Transaction(s). Xe Au shall not be liable for any loss or damage suffered by you as a result of any such delay.

5.12 You acknowledge that you have received, read and understood the PDS and the TMD for the Trade or FX Option relevant to your Request.  In addition, you agree that you fall within the target market specified in the TMD (i.e., it specifies you as someone to whom the product should be sold, and agree to notify us as soon as you become aware that you no longer fall within the target market for the TMD going forward).

 

6. YOUR RESPONSIBILITY TO US

6.1 Account Registration

(a) Before we can perform any of Our Services for you, you must establish an Account with us by completing an Application Form. You must provide us with all reasonable details we require from you, including details relating to your identity, proof of address and any other information we may require from you to enable us to complete our anti-money laundering, sanctions and onboarding processes.

(b) We may require you to submit additional Application Forms to access different kinds of Trades or FX Options that may be subsequently offered by us. If you do not use Our Services for eighteen (18) months, you may need to re-apply to use Our Services.

(c) We reserve the right to refuse an Application Form and are not required to explain the reasons for any such refusal.

6.2 Compliance with legal requirements, including AML and CTF Laws

(a) You undertake that you:

(i) are not aware of, and do not hold any suspicion that your funds are derived from, or will be used in connection with, money laundering, terrorism financing or other activities which are unlawful in Australia or any other country;

(ii) will not knowingly put us in breach of any laws or regulations in Australia or any other country, including the AML and CTF Laws;

(iii) are not subject to any sanctions laws; and

(iv) will immediately notify us if you become aware of anything that has or may result in a breach of the kinds described in this clause 6.2.

(b) You must promptly supply us with all reasonable information and documentation which we may ask you for at any time to enable us or our banking counterparties to comply with any legal requirements in Australia or any other country relating to Our Services, including the AML and CTF Laws.

(c) You agree that any such information or documentation (which may include your “personal information” as defined in the Privacy Laws) currently in the possession of the Xe Group may be shared with us and used by us to enable or facilitate our compliance with legal obligations and/or our legitimate internal compliance processes, and vice versa. You acknowledge that the transfer of information and documentation pursuant to this clause may involve a transfer to or from outside Australia in accordance with our Privacy Notice.

(d) We will handle any information or documentation provided by you in accordance with Our Terms, specifically clause 13 "Confidentiality" and clause 14 "Your Information" and our Privacy Notice.

(e) You agree that we are not required to take any action or perform any obligation under or in connection with Our Terms that may place us in breach of any laws or regulations in Australia or any other country and that we may delay, freeze, block or refuse to make any payment or refuse to provide any of Our Services in certain circumstances, without providing notice, explanation or incurring any liability in those circumstances. For example, if we are not satisfied as to your identity or the information provided by you, or if we are not satisfied that providing any of Our Services or making a payment would be in compliance with AML and CTF Laws or other legal requirements.

6.3 Keeping your Account safe

(a) It is your responsibility to take steps to keep your Account safe.

(b) You agree that you will contact Xe Au if you suspect that your Account or security credentials have been lost, stolen, used without your authorisation, or otherwise compromised. Any delays in contacting us may affect the security of your Account and may result in financial losses.

(c) You acknowledge that if you authorise third parties to access your Account, we will not be responsible for any losses that may result, except where any losses are caused by our fraudulent or negligent acts or omissions. This extends to any unauthorised or incorrect transactions that a third party may make on your behalf.

6.4 Maintaining your account

(a) You are required to check your Account regularly and contact us immediately if you do not recognise a transaction or believe a payment may have been made incorrectly. You must inform us about any unauthorised or incorrectly executed transactions immediately.

(b) You accept the risks of holding balances in multiple currencies, and you agree and accept any risks associated with fluctuations in the relevant exchange rates over time.

(c) If your Account goes into a negative amount, including as a result of chargeback, reversal, or other action carried out by you or a third party, that negative amount represents an amount that you owe to Xe Au and you promise to repay the negative amount immediately without any notice from us. We may send you reminders or take such other reasonable actions to recover the negative amount from you. For example, we may use a debt collection service or take further legal action as necessary. We may charge you for any costs we may incur as a result of these collection efforts, such as bank fees or legal fees.

6.5 How we will contact you

(a) We will ordinarily contact you by email and as such, you must maintain a valid email address on your Account at all times.

(b) You should check your emails regularly to ensure you review any relevant correspondence about your Account and Our Services.

(c) At times, our correspondence will require you to take further actions, including review of updated information or signing updated agreements.

(d) If we have concerns about the security of your Account we will contact you via telephone, email, or both.

6.6 Payment Purposes

(a) You agree to only use Our Services for currency conversion in connection with making payments for relevant goods or services or other valid commercial or personal purposes, and not for any investment purposes. You warrant that you will not use any of Our Services to try to speculate or profit from exchange rate fluctuations. You agree that you will take physical delivery on the Value Date of the Purchase Currency after payment to us of the full amount of the Sale Currency for each Trade.

(b) You warrant and undertake to us prior to making any Request, that the Beneficiary is not a person, group or entity, or associated with a country, sanctioned under Sanction Laws.

6.7 Security Information

(a) It is your responsibility to safeguard any Security Information you may use to access any part of our Online Services, or to use any of Our Services. You will notify us without undue delay on becoming aware of the loss, theft, misappropriation or unauthorised use of any such Security Information, including the details of any payment card, assigned to you or held by you.

(b) You agree that:

(i) you will not provide, disclose or make available the Security Information to any person (other than an Authorised Person in their capacity as your agent);

(ii) you will not permit, consent or allow any person (other than any Authorised Person in their capacity as your agent) to use the Security Information or to access or use the Online Service using that Security Information;

(iii) we are not liable for any Loss caused by us acting on instructions or other communications provided to us by, on behalf of, or apparently on your behalf, via the Online Services system accessed using the Security Information;

(iv) you are responsible for the consequences of any unauthorised disclosure or use of the Security Information, and for any actions or omissions by an Authorised Person, and will compensate us for any Loss suffered by us in respect of any such disclosure, use, actions or omissions;

(v) you will install and maintain robust anti-virus and cyber defence software programs on your computer, and any other device you transact with us from; and

(vi) you will notify us immediately upon becoming aware of any unauthorised disclosure or use of the Security Information or the use of the Online Service.

6.8 Information provided to us

(a) You are responsible for ensuring the completeness and accuracy of all information you provide to us, including but not limited to information set out in your Request and details of the Beneficiary Account (including the account number and full name and physical address of the account holder and beneficiary bank). We will rely solely upon the Beneficiary Account details that you provide. 

(b) If we act in accordance with your instructions and send your funds to an incorrect Beneficiary Account as a result of an error made by you, we will provide reasonable assistance to you to recover the funds (for example, by attempting to recall the funds). However, we cannot guarantee that your funds will be recovered in all circumstances.

(c) However, if we send your funds to the incorrect Beneficiary Account as a result of an error made by us, we will take action at our own expense to attempt to recover and/or resend the misdirected funds. In this event, you must provide us with all reasonable assistance in recovering the funds if the mistaken Beneficiary Account is in any way associated with you.

(d) You must always provide us with instructions in English, and make sure any Authorised Person provides us with instructions in English.

(e) If, at any time, you ask us to communicate with any other person about a FX Contract, we will not be liable to you for any disclosure of any information we make to that person concerning that FX Contract and we are entitled to rely on and to treat any information disclosed to us by that person as complete and accurate in all respects.

(f) You must keep your contact information up to date at all times and be reasonably available should we need to contact you. You will notify us as soon as you become aware of any error in any details you have provided to us and must not withhold or omit any information that would render those details false or inaccurate. As set out in clause 9.1(b)(i), failure to do so may form grounds for termination of a FX Contact by us.

(g) You will also notify us if you become aware of any error in connection with a FX Contract or if any of the circumstances listed in clause 9.1(b)(ix) (which relate to your ability to pay us for Our Services) occurs. You undertake not to omit to tell us anything which may affect our decision whether to provide you with Our Services or to continue to do so.

6.9 Capacity

(a) Each FX Contract is personal to you, as our client. Unless you have disclosed that you are acting in a trustee, agent or partnership capacity or on behalf of another person, you agree that you are acting as principal only and not for, or on behalf of a Third Party and will not complete a Request on behalf of any Third Party or provide us with any instructions for or on behalf of or on account of any Third Party, and will procure that any Authorised Person will also adhere to these requirements. We are not responsible to and will not perform Our Services for any person except you or an Authorised Person under any FX Contract, unless otherwise expressly agreed by us.

(b) If you are acting in a trustee, agency or partnership capacity with our prior approval, you agree to provide the additional warranties and representations in Schedule 2.

(c) By entering into a FX Contract, you confirm that you have capacity and authority to place a Request and enter into, and perform your obligations pursuant to, the FX Contract.

6.10 Compliance with Local Laws

We are based in and operate our business out of Australia and in accordance with Australian law. For that reason, we cannot be expected to know of or investigate any local law requirements that may apply if you are accessing Our Website or Our Services from outside Australia and we are not responsible for compliance with any other local law. If you are accessing Our Website or Our Services from outside Australia, you must satisfy yourself of any other local law requirements and agree to only use Our Services and enter into FX Contracts if doing so does not cause you or us to be in breach of any applicable foreign law.

6.11 Authorisation

(a) You may, subject to our acceptance, authorise an Authorised Person to provide us with instructions on your behalf. Any appointment of an Authorised Person shall remain in full force and effect unless and until a notice of cancellation of appointment is delivered to us. You may provide the notice of cancellation of appointment in writing via email or by post to our address set out in the Contact Details in the definitions section of Our Terms.

(b) Unless and until you have provided notice to us to the contrary, you acknowledge and agree that:

(i) you are responsible for ensuring that only the Authorised Person accesses Our Services to issue a Request or otherwise provide us with instruction(s) on your behalf;

(ii) you shall ensure that the Authorised Person is aware of Our Terms and you will procure that such Authorised Person complies with Our Terms;

(iii) we will treat use of the Authorised Person’s sign-in or account information or a Request by or the instructions of the Authorised Person, as if they came from and are authorised by you; and

(iv) you warrant to us that all Authorised Persons have full authority from you to instruct us in connection with all matters in respect of which they are stated to be authorised by you in Our Documentation. It is your responsibility to properly complete Our Documentation with all information relating to the Authorised Person and the scope of their authority.

6.12 Joint Account Holders

Where we receive an instruction to perform a Trade or FX Option from any person who is a joint account holder with us, the Trade or FX Option will be treated as made with all persons named as joint account holders on the relevant Account and each of them will, both together and separately, be responsible for the performance of all obligations under the FX Contract, and will be liable to us in the event of any breach of its terms. Any notice which we are required to give concerning any joint account will be treated as properly given if it is given in accordance with clause 15.6 of Our Terms, regardless of to whom of the joint account holders it is addressed.

6.13 Third Parties

(a) An FX Contract is personal to you and us. We have no responsibility to and will not perform Our Services for any Third Party under any FX Contract, unless the Third Party has been approved by us in writing prior to entering into the FX Contract. You warrant to us that you are acting as principal only and not acting for or on behalf of or as an agent for any Third Party, whose identity has not been disclosed by you in writing to us prior to applying for the Account.

(b) As set out in clause 6.9, if you are acting in a trustee, agency or partnership capacity, you agree to give the additional warranties and representations set out in Schedule 2 of Our Terms.

6.14 Payment Obligations

6.14.1 Spot Trade

The amount we require from you for a Spot Trade (the full amount of the Sale Currency) will be due to and must be paid to us in full in cleared funds into Our Nominated Account by no later than the time stipulated by us in the Contract Note on the Business Day immediately preceding the Value Date.

6.14.2 Same Day Trade

The amount we require from you for a Same Day Trade (the full amount of the Sale Currency) will be due to and must be paid to us in full in cleared funds into Our Nominated Account by no later than the time stipulated by us in the Contract Note on the day of the Same Day Trade.

6.14.3 Forward Trades, Margin Payments and Additional Margins

(a) The amount we require from you for a Forward Trade will be due to and must be paid to us:

(i) if Margin is required, as specified by us, in full in cleared funds by no later than the time stipulated by us on the Business Day we tell you in our Acceptance; and

(ii) the balance, in full in cleared funds by no later than the time stipulated by us on the Contract Note, unless expressly agreed by us otherwise in writing.

(b) In addition to the Margin and balance due to us, we may also require an Additional Margin from you to make up for any Variation which may have occurred on the Trade. We will contact you if we require an Additional Margin from you, including by telephone call or email to you or an Authorised Person.

(c) It is important that you remain contactable by us during our Business Hours on Business Days using the contact details that you provide us with, from time to time. Your failure to be contactable or to receive notice of an Additional Margin at any contact address does not affect the validity of our request for the Additional Margin or your obligation to satisfy it.

(d) Payments made towards satisfying requests for Margin or Additional Margin will be held in Our Nominated Account.

(e) You agree and acknowledge that:

(i) you have an obligation to pay an Additional Margin within the timeframe specified by us in the Contract Note;

(ii) if no other time is stipulated by us, you must pay the requested Additional Margin within twenty-four (24) hours of our request for payment;

(iii) we may require an Additional Margin to be paid immediately, for example if there are Volatile Market Conditions;

(iv) time is of the essence in relation to you making a payment of an Additional Margin;

(v) the minimum amount of the Additional Margin may be determined by us in our absolute discretion. Your liability in respect of Additional Margins is not limited to the amount, if any, initially paid to us for your Account. Rather, you are responsible for paying any deficit owing to us after termination of a Trade;

(vi) we may make requests for Additional Margins more frequently than daily and you must fully and punctually comply with such requests; 

(vii) if you fail to pay the Additional Margin within the required time, then we may (without prejudice to any other rights or powers under Our Terms) terminate by way of Close Out without notice, all or some of your Trades, whether or not those Trades caused the need for the Additional Margin; and

(viii) we may ask you for proof that you have instructed your bank to pay us the additional amount we require within twenty-four (24) hours of our request, or within a time otherwise specified by us. Failure to provide us with this proof on demand may also result in a Close Out.

6.14.4 Swap Trade

If a Trade is a Swap Trade:

(a) clause 6.14.1 will apply to the Spot Trade component of the Swap Trade; and

(b) clause 6.13.3 will apply to the Forward Trade component of the Swap Trade.

6.14.5 FX Options

(a) FX Options (including FX Structured Options) are only offered to Wholesale Clients.

(b) The amount we require from you for an FX Option is dependent upon the type of structure requested and subject to the terms agreed with you in writing, and accepted by you.

(c) See Schedule 1 for additional information regarding FX Options (including Structured FX Options) offered by Xe Au.

6.14.6 General Payment Obligations for FX Contracts

Payment Times

(a) You must pay all sums due to us for the FX Contract (including any transaction fees and service fees) in full in cleared and settled funds by the due date and time we specify into Our Nominated Account. Time is of the essence in relation to the performance of your payment obligations under Our Terms. 

Payment Currency

(b) You must pay all sums due to us for the FX Contract by electronic payment in the currency agreed in the FX Contract. We do not accept cash or cheques paid over the counter. If you attempt to make payment in cash, you will not have satisfied your payment obligation to us, and it may take up to twenty-eight (28) Business Days for us to make your funds accessible. Cash payments made into our bank account may be repaid to you less any cash handling fees imposed by our bank and our reasonable administrative fees as notified to you. We may also be required by AML and CTF Laws to seek satisfactory information from you about the source of the funds before returning the funds to you. We will accept a bank cheque at our discretion.

Interest, Charges & Fees

(c) We may charge interest on any sum due to us at any time (including any sum due to us after we Close Out any or all of your Trades) which is not received by us in full in cleared and settled funds by the due date at the rate of five percent (5%) per annum above our principle bank’s base lending rate from time to time, and this interest will accrue daily from, and including, the due date until we are in receipt of the overdue amount in full in cleared and settled funds. This rate is available from us upon request.

(d) We may also charge a fee to you if you instruct us to make more than one onward payment on settlement of a Trade.

(e) You acknowledge that you will not receive interest on any Margin Payments or any of your money held by us. We will retain interest paid to us in respect of Margin Payments and your money (including money held by us on trust, if applicable) and you waive all rights to receive interest.

(f) You also acknowledge that bank charges and fees may be deducted from payments to or from us by third party banks in the following circumstances:

(i) by your bank and any intermediary or receiving banks from money paid by you to us; or

(ii) by intermediary and receiving banks from Purchase Currency transferred internationally by us on behalf of you,

and these charges and fees are to your account.

(g) We may also charge you a transfer fee, in an amount specified on Our Website, if the amount of the Sale Currency falls within a range listed on Our Website as attracting a fee. We may vary both the applicable range of Sale Currency and the amount of the transfer fee from time to time.

(h) In certain circumstances, payment of a money transfer may be subject to local taxes and service charges which we will notify you of where possible.

Transaction Thresholds & Limitations

(i) We may also (without notice), from time to time, set or alter limits on the value and/or types of FX Contracts that we may enter into with you. The applicable limits will be made available on Our Website or Our App.

Ownership of Funds

(j) You warrant to us that all sums you pay us and any security you give to us relating to the Trade or FX Option (including any Margin or Additional Margin) or FX Option will be beneficially owned by you and not subject to any mortgage, charge, lien or other encumbrance in favour of a Third Party.

Source of Funds 

(k) Unless a payment from a Third Party is approved by us in advance, you will only pay us from a legitimate source held in the same name to which your Account is held with us (such as your bank account). We do not generally accept debit or credit card payments from you, unless agreed in writing on the relevant Contract Note.

(l) You must inform us in advance if the payment is to be made by a Third Party on behalf of you. We may be required by AML and CTF Laws to undertake additional compliance checks for a Third Party payment and there may be delays in allocating the payment to your Account. We reserve the right to return the payment to the remitting account and require you to pay from your own bank account if we are not satisfied with the information provided.

Delivery of Funds / Holding Balances

(m) Once settlement has been received by Xe Au with respect to a Forward Contract, Xe Au will deliver the contract funds in accordance with the instruction or, if no such instruction is provided, you irrevocably grant Xe Au the authority and direct Xe Au to pay the Contract Funds into a Holding Balance. If you do not have access to a Holding Balance, you must provide to Xe Au, at least two (2) Business Days before the maturity date or draw down date, the necessary remittance details and instructions to initiate payment of the contract funds to the payee.

6.14.7 Derivative Reporting

Client Identifiers

(a) You acknowledge and agree that:

(i) you may require a Legal Entity Identifier to enter into certain orders with Xe Au;

(ii) if notified by Xe Au that a Legal Entity Identifier is required for an order contemplated by you, you will, if you have an identifier at the time of this notification, advise Xe Au of the relevant identifier promptly, or if you do not have an identifier, obtain one and advise Xe Au as soon as practicable;

(iii) Xe Au may elect not to enter into Orders if you have not provided any details of your relevant identifier to Xe;

(iv) Xe Au may, in its sole discretion, elect to accept any other form of client identifier recognised under the Reporting Requirements in lieu of an identifier; and

(v) unless otherwise agreed in writing between the parties, you are solely responsible for obtaining and maintaining your Legal Entity Identifier, and promptly communicating any changes to Xe Au.

Reporting

(b) You acknowledge and agree that Xe Au is required to report certain completed orders and open trade positions to certain regulators under the Reporting Requirements.

 

7. HOLDING BALANCES

7.1 Delivery of funds into a Holding Balance

Where we credit all or any part of funds purchased to a Holding Balance, the funds will be held by Xe Au absolutely, and may be used by us for any purpose. Our right to use the funds in this way does not limit our obligation to pay the relevant amount of the Holding Balance to you in accordance with your instructions.

7.2 Reference rate

To the fullest extent necessary to accomplish the objectives of this clause, any currency conversion shall be calculated by making use of the Reference Exchange Rate, that Xe Au specifies from time to time, or Live Rate, on Xe Au's website, as at the applicable time and date of relevant transaction, at Xe Au’s sole discretion. This discretion may be exercised by Xe Au, even if it results in a less favourable rate for you.

7.3 Your acknowledgement
 

You acknowledge that Holding Balances are made available for your convenience, to facilitate further foreign exchange trading or your settlement of foreign exchange trades with Third Parties.

7.4 Your obligations unaffected by payment
 

You acknowledge and agree that payment by you will not affect any obligation of yours to Xe, except to the extent that funds are paid to us from the Holding Balance in accordance with your Instructions.  

7.5 Funds owed to us

(a) You irrevocably grant us the authority and direct us to make payments to ourselves from the Holding Balance for:

(i) any amount due to us in relation to any FX Contract requested in on instruction; and

(ii) any other amount due to us under our Terms.

(b) Each payment will be taken, for the purposes of our Terms, to have been requested in an instruction.

7.6 Holding Balance Limits
 

Funds may be maintained in a Holding Balance for a maximum of ninety (90) days. You accept that there are risks associated with maintaining Holding Balances in one or more foreign currencies (including in relation to Volatile Market Conditions) and Xe Au shall not be responsible for any loss or damage you incur as a result of such events. If we do not receive a timely instruction for the disposition of such funds, those funds will be converted to your home currency at the then prevailing exchange rates and returned to you, minus any reasonable fees and charges as notified to you.

7.7 Holding Balance administrative fee
 

You acknowledge and accept that the Holding Balance account will be subject to an administrative fee determined by Xe Au on a discretionary basis, which reasonably reflects Xe Au’s costs.

7.8 Repayment on termination
 

In the event Our Terms are terminated for any reason, Xe Au may convert funds that are held in your Holding Balance into your home currency at the then-prevailing exchange rates and return the funds to you.

 

8. OUR RESPONSIBILITY TO YOU

8.1 We will:

(a) provide Our Services at all times in accordance with:

(i) Our Terms;

(ii) Our Privacy Notice; and

(iii) relevant laws and regulations.

(b) in relation to each Trade and FX Option:

(i) tell you what the Value Date will be;

(ii) tell you what Sale Currency amount and any other amount we require from you, together with the date and time by which we must be in receipt of that amount in full in cleared and settled funds; and

(iii) use the contact information you provide us with to contact you, including to verify any transaction, to check your identity or to notify you of any requirement for an Additional Margin.

8.2 We will not be obliged to:

(a) provide any of Our Services to you unless or until you have met the requirements of our Terms, and in particular, clause 6.1 “Account Registration”, clause 6.2 “Compliance with Legal Requirements, including AML and CTF Laws”, clause 6.5 “Payment Purposes, clause 6.6 “Security Information”, clause 6.7 “Information provided to us”, clause 6.8 “Capacity” and clause 6.9 “Compliance with Local Laws”;

(b) provide any of Our Services to you if an event listed in clause 9.1of Our Terms occurs (acting reasonably);

(c) provide a FX Option or perform a Trade until we are in receipt of cleared and settled funds from you (acting reasonably);

(d) accept any money to provide a FX Option or perform a Trade from any person other than you, except where that person is an Authorised Person, or both parties agree otherwise in writing; and

(e) proceed with any Trade or FX Option having a value higher than any transaction limit which we may impose from time to time (acting reasonably).

8.3 Settlement of liabilities and deductions

(a) We may use any sum which we receive from you (including any sum forming part of any Margin we receive from you) at any time to settle any liability which we may incur relating to a FX Contract.

(b) Where we are required by the law of any country, territory or state (for example, for tax reasons) to make any deduction from any amount that we receive from you for the Trade or FX Option, we must make such a deduction. The amount that we deduct will be reasonable and no more than the amount of our legal liability.

8.4 Other funds

(a) All Client Money that is received by us, including wholesale funds, will be held in a Client Money Account.

(b) All funds received by us from you that are not Client Money (for example, funds received in connection with short-term deliverable FX Contracts settling within three (3) Business Days) will be paid to us directly. You acknowledge and agree that we are authorised to use such funds for:

(i) the purpose of meeting our obligations relating to exchange-traded derivatives, provided that we are satisfied that the recipient is a Hedge Counterparty; and

(ii) authorised Hedge Contracts, providing that the amount transferred to a Hedge Counterparty is limited to such an amount that is reasonably required for entering into derivatives with the Hedge Counterparty or for settling or securing those derivatives with the Hedge Counterparty. 

(c) As a Wholesale Client, you acknowledge you forego certain statutory protections including that:

(i) you may not be eligible to access the dispute resolution services offered by the Australian Financial Complaints Authority (AFCA); and

(ii) you may not receive a PDS or Financial Services Guide (FSG).

(d) Notwithstanding clause 8.4(c), you acknowledge that you have visited Our Website and viewed the PDS and TMD.

(e) You also acknowledge, as a Wholesale Client, that we are entitled to retain interest on funds received by you in our Client Money Account.

8.5 Certain High Risk or Complex Jurisdictions

(a) We reserve the right not to accept or allow payments from or to, either directly or indirectly, certain jurisdictions which we have determined, acting in our sole discretion, are high risk to our business or involve a higher level of complexity for us in carrying out our transactional monitoring process.

(b) We further reserve the right to request additional information from you, including information on the payee, where payments are to be made to certain jurisdictions, acting in our sole discretion.

8.6 Our Website

(a) If you use Our Website, you are bound by any terms of access to and use of Our Website which are available online at xe.com. If there is any inconsistency between Our Terms and website terms of use in relation to your use of Our Website, then Our Website terms of use shall prevail over Our Terms to the extent of any inconsistency.

(b) You acknowledge and agree that:

(i) the acceptance of a Request placed through Our Website system (resulting in a Trade being entered into) may be delayed by filters or other electronic features of the electronic system;

(ii) we will not be liable for any Loss incurred by you arising from any delay in the dissemination of market information or the processing of any Request; and

(iii) if a failure, interruption or malfunction of electronic communication between the parties prevents a Request from being placed, we are liable to you for any Loss caused by that failure, interruption or malfunction.

(c) You also agree to:

(i) promptly notify us if you become aware of any inaccurate information being transmitted through Our Website including, for example, inaccurate content as to Requests or Account balances; and

(ii) make all reasonable attempts to verify whether a Request has been received, approved and effected prior to taking further action, if you are uncertain as to whether your Request has resulted in a Trade following you confirming the exchange rate being offered on Our Website system. We will take reasonable steps to prevent duplicate Trades being placed. However, you will be responsible and liable for any duplicate instruction that you place where you fail to make enquiries to verify whether a Request has been received.

8.7 Market Orders

(a) This clause applies to any complying Market Order which you place with us through Our Website (“Online Market Order”), over the phone (individually and collectively, “Market Order”), and that we agree to perform for you.

(b) Without prejudice to the rights and obligations set out below regarding stop loss market orders, we reserve the right not to act on any Online Market Order placed with us where the amount of the Trade does not comply with limits imposed by us and notified to you from time to time. We may further place limits on the number of Online Market Orders you may place at any given time and such limits will be communicated to you by email.

(c) A Market Order is effective from the date and time we confirm by phone, email or via our Online Services. A Market Order is valid and open to Acceptance until cancelled. You may cancel or vary a Market Order using the Online Service or by telephone on Business Days during our Business Hours at any time before the Target Rate is reached.

(d) Each Market Order constitutes a continuing offer to us, that we may accept at any time until the expiry date for the Market Order (if applicable) or until you cancel the Market Order. Once a Market Order is cancelled, we have no further obligations to you in respect of that order, except that we must return to you any funds (and interest, if applicable) that you may have provided us with in order to perform the Market Order, subject to any deductions which we may be required to make from time to time (such as intermediary charges or receiving bank charges).

(e) We will execute a stop loss market order or a limit order after the Target Rate has been reached and when we are able to transact with bank counterparties at such Target Rate.

(f) Upon Acceptance (for example, the Market Order being executed and fulfilled at the Target Rate to meet the order), we will notify you and send you a Contract Note within two (2) Business Days. You must ensure that you make payment in cleared funds by the Value Date specified in the Contract Note.

(g) As we communicated to you when you placed the Market Order and as accepted by you, we will use reasonable endeavours to fill the Market Order on the basis of the predetermined exchange rate specified by you. However, we make no guarantee that a Market Order will be filled (when such rate is reached or otherwise). For example, a Market Order may not be filled due to fluctuations and movements during Volatile Market Conditions or where market conditions prevent the execution of a Market Order at that exchange rate.

(h) You acknowledge and agree that:

(i) we will in our sole discretion determine whether a Target Rate has been reached and may disregard temporary movements in exchange rates;

(j) although you specified a Target Rate for a Market Order, market conditions may prevent the execution of a Market Order at that exchange rate;

(k) as a result of fluctuations and movements during Volatile Market Conditions outside of our control that affect or may affect our ability to perform a Spot Trade entered into on execution of a stop loss market order, an executed stop loss market order may be significantly and adversely above or below the rate nominated by you;

(l) you may not cancel a Market Order after the Target Rate has been reached, whether or not we have notified you that the Target Rate has been reached; and

(m) you are legally bound by the Market Order once the Target Rate has been reached.

8.8 Spread

For FX Contracts, the rate which we offer you is different to the rate we are able to obtain from the wholesale market. Accordingly, we make a profit from selling you Purchase Currency.

8.9 Treatment of Unallocated Funds and Funds on Account

Funds on Account

(a) Funds on Account may be maintained for a maximum of ninety (90) days, unless otherwise agreed with Xe Au and permissible under the applicable laws and regulations. You shall be responsible for all risks (including, without limitation, Volatile Market Conditions) associated with maintaining Funds on Account. Prior to the expiration of the ninety (90) day period, Xe Au may contact you for your instructions in respect of disposition of the Funds on Account. If Xe Au does not receive timely instructions from you for the disposition of such funds in accordance with this clause 8.9, those funds may be converted to your home currency at the then prevailing exchange rate(s) and returned to you in accordance with this clause 8.9.

(b) Xe Au will make the following attempts to contact you, and should you fail to provide Xe Au with your instructions on the Funds on Account, your Funds on Account may be dealt with as set out below:

(i) Xe Au will send correspondence to you, on your preferred form of communication in force at the time, highlighting that you have Funds on Account and request instruction on how to proceed. The correspondence will state that if you do not provide Xe Au with instructions as to the disposition of the Funds on Account within one (1) week after the date of our final correspondence as set out below, Xe Au may handle your funds in accordance with this clause 8.9.

(ii) Following our first correspondence to you, Xe Au may send a further final correspondence to you. If you fail to provide Xe Au with instructions as to the disposition of the Funds on Account within one (1) week after the date of our final correspondence, Xe Au may remove the Funds on Account, convert them to your home currency at the then prevailing exchange rate(s) and return them to you. If after 90 days, Xe Au is unable to return the Funds on Account to you (after taking reasonable steps and making all necessary enquiries), Xe Au may dispose of those Funds in accordance with relevant laws and regulations, subject to applicable laws and regulations.

(c) Where Xe Au holds Funds on Account and you enter into a payment contract or Trade, Xe Au may use the Funds on Account in settlement or part-settlement of such payment contract or Trade, unless instructed otherwise by you. In the event that any Funds on Account held by Xe Au are so applied and are insufficient, you shall remain liable to Xe Au for any shortfall, and you shall pay or reimburse such shortfall in full on demand.

(d) In the event that Our Terms are terminated for any reason, Xe Au may convert Funds on Account into your home currency at the then-prevailing exchange rates and return the funds to you in accordance with this clause.

Unallocated Funds

(e) Notwithstanding any other provisions of Our Terms, and to the extent permitted by law, where Xe Au holds Unallocated Funds in an amount less than 10 of the relevant currency unit (or 100 of the applicable currency unit in Australia), Xe Au may deal with that amount in accordance with  applicable laws and regulations.

(f) Unallocated Funds (exceeding 10 of the applicable currency unit or 100 of the applicable currency unit in Australia) may be maintained for a maximum of ninety (90) days, subject to applicable laws and regulations. You acknowledge that you are responsible for the risks associated with Unallocated Funds that belong to you (such as Volatile Market Conditions). If we notify you that we are or may be holding Unallocated Funds relating to your Account or an existing Trade or Payment assigned to you, then you must provide Xe Au with instructions on how to deal with the Unallocated Funds. If Xe Au does not receive  instructions from you for the disposition of the Unallocated Funds within ninety (90) days after providing notice to you, those funds may be dealt with as required by applicable laws and regulations.

(g) You acknowledge and accept that no interest will be paid by Xe Au to you in respect of any Funds on Account or Unallocated Funds.

 

9. TERMINATION

9.1 Our termination rights

(a) Each Trade will expire automatically following full settlement of the Trade. FX Options and/or Structured FX Options will be exercised in accordance with the terms set out in Schedule 1.

(b) In addition to any other termination rights in Our Terms, we may terminate a FX Contract upon reasonable notice to you in all circumstances (except in relation to clauses 9.1(b)(vi) to 9.1(b)(xiii) (inclusive) where we are entitled to terminate immediately without notice):

(i) where you fail to promptly provide us:

(A) with any amount due to us relating to any Trade (including any Margin or Additional Margin) or FX Option by the due date; or

(B) with proof that you have instructed your bank to pay us any Additional Margin, upon demand by us;

(ii) where we try to but are unable to make contact with you using the contact details you have provided to us in the event that we require an additional security or where you are not contactable for a prolonged period on Business Days in other circumstances (acting reasonably);

(iii) where you do not provide us with instructions in writing, including all the details we require relating to your Account or Beneficiary Account;

(iv) where you have failed to comply in full with any reasonable information request made by us;

(v) where you have provided us with information that is or becomes, in our opinion, false, misleading or inaccurate in any material respect or you are unable to prove to our reasonable satisfaction that any information is true and complete in all material respects; 

(vi) where it becomes, or there is a material risk that it may become, unlawful for us to continue to provide you with Our Services or to maintain or give effect to all or any of the obligations under Our Terms;

(vii) where we are requested to do so by law, by any court of competent jurisdiction or by any governmental or regulatory body which authorises us to perform Our Services, whether or not the request is legally binding;

(viii)  following a material breach by you of any of Our Terms, including any breach by you of any of the provisions of clause 6, or your non-compliance with any applicable statute or regulation or in the event that we discover or have reasonable cause to suspect any crime, fraud or fraudulent activity by you;

(ix) in the event that you become unable to pay your debts as and when they fall due, you cease or threaten to cease any payments due under Our Terms or any FX Contracts, cease or threaten to cease to carry on all or a part of your business (if applicable), you make any assignment, arrangement or composition with or for the benefit of your creditors, you become insolvent, you are placed into receivership, administration or go into liquidation or are subjected to any similar event;

(x) if you are a natural person, in the event that you die, become of unsound mind or otherwise lose mental capacity, have bankruptcy proceedings commenced against you, have a bankruptcy petition issued against you, or commit one or more acts of bankruptcy as set out in the Bankruptcy Act 1966 (Cth);

(xi) if you are a partnership, in the event that a partner dies or becomes of unsound mind, has bankruptcy proceedings commenced against them, has a bankruptcy petition issued against them, or commits one or more acts of bankruptcy as set out in the Bankruptcy Act 1966 (Cth), or the partnership is dissolved for any reason;

(xii) where at any time, after making reasonable enquiries, we believe on reasonable grounds that there is a material risk that you are:

(A) entering into a Trade or FX Option for investment or speculative purposes; or

(B) are in breach of AML and CTF Laws or any other laws relevant to a Trade, a FX Option or Our Services.

(xiii) where at any time, we reasonably believe termination of one or more Trades or FX Options is necessary or desirable, in order to protect both you and us, including when Volatile Market Conditions exist, or we reasonably believe that you will be unable to fund the Trade or FX Option or otherwise comply with your obligations to us as and when they fall due;

(xiv) as provided for in clause 11 “Circumstances beyond our control”; and

(xv) where you have undertaken actions which are materially not in line with Xe Au’s culture and values.

9.2 Default Notification

If you become aware of the occurrence of any event referred to in clause 9.1 (other than clauses 9.1(b), 9.1(n) and 9.1(o)), you must provide us with notice of such event as soon as reasonably possible.

9.3 Your Termination Rights

(a) As we may take on risk and incur liability straight away on your behalf when a FX Contract is formed, your rights to terminate are more limited than ours. However, if the following events occur, you may terminate any FX Contract by providing us with written notice in accordance with clause 15.6:

(i) if we breach any provision of Our Terms or otherwise fail to comply with our obligations to you in respect of a FX Contract;

(ii) if we are in breach of any statute or regulation relevant to the FX Contract; and

(iii) if we become unable to pay our debts as they become due, make any assignment, arrangement or composition with or for the benefit of our creditors, or we become insolvent.

(b) Upon you providing us with a notice of termination, we must immediately Close Out each relevant Trade and clause 9.5 will apply to that termination by way of Close Out.

9.4 Survival

The provisions of this clause 9 “Termination”, clause 3 “Language and Applicable Law”, clause 10 “Liability”, clause 11 “Circumstances beyond our Control”, clause 12 “Linking and Framing”, clause 13 “Confidentiality”, clause 14 “Your information”, and clause 15 “General” shall survive the termination or expiry of Our Terms for any reason.

9.5 Consequences of Termination

Close Outs

(a) If we terminate a FX Contract in accordance with our termination rights in clause 9.1, we:

(i) will Close Out any Trade not yet completed, which you acknowledge may involve us entering into a Reversal Transaction;

(ii) will notify you of the Close Out Cost that we will claim from you (if any) as a genuine pre-estimation of the cost to us of Close Out (and not as a penalty);

(iii) will notify you of any Further Loss;

(iv) may use any sum which you have paid us (including any Security Payment), in satisfaction of that Close Out Cost and/or Further Loss and to settle any other liability or recompense us for our Loss incurred in connection with the termination, unless the Close Out or termination is as a result of our being placed into receivership, administration or liquidation;

(v) will return the balance of any sum which you have paid us that remains,  after settlement of all liabilities; and

(vi) will not execute the Trade or Payment.

Payment of Loss

(b) If we claim a Close Out Cost and/or Further Loss in accordance with clause 9.5(a), You must pay us on demand within two (2) business days the amount of the Close Out Cost and/or Further Loss that we claim following any Close Out or termination, unless the Close Out or termination is as a result of our being placed into receivership, administration or liquidation.

Set off

(c) You agree that we may set off any money due and payable by you to us under the Agreement or in respect of any Trade, FX Option or otherwise against any of your money held by us or any money payable by us to you. You authorise us to withdraw the amount set-off from any funds held in your Account. This clause will not limit any right of set-off, combination of accounts, or rights of retention or withholding that we may have at law or in equity.

Netting Agreement

(d) You also agree that if one or more FX Contracts are terminated by either party under Our Terms, we may elect to net the payments due and payable but unpaid by either party on termination (together with any other payments due and payable but unpaid by either party in respect of any other Trade, FX Option or otherwise) so that one netted balance is calculated by us and notified to you as soon as reasonably practicable after termination. Both your obligation and our obligation to make all such payments will be satisfied by the payment of the net amount due, from the party having a net debit, to the party having the net credit, provided that those obligations of the party having the net credit will be deemed to be satisfied and discharged on the date such payment is due, regardless of whether the payment is made. The party with the net debit will pay the net amount due to the party having the net credit on the date on which that notice is given.

(e) The provisions of the clauses above are without prejudice to any rights that we may have to recover from you such Loss or damage as we may suffer as a result of a breach by you of your FX Contract with us which does not result from Close Out or termination of the FX Contract. We reserve the right to claim Loss from you as liquidated damages, provided that any liquidated damages claimed are always a genuine pre-estimate of our Loss likely to be caused (and not as a penalty).

Costs and expenses of termination

(f) You are liable to us for any costs or expenses we reasonably incur in connection with the exercise of our rights under this clause 9 including legal costs, together with interest on those costs and expenses at the rate of five percent (5%) per annum above our bank’s base lending rate at the time the costs and expenses are incurred. This rate is available from us upon request. You authorise us to withdraw the amount of such costs, expenses and interest from any funds held in your Account or Holding Balance.

No payment of profit

(g) You agree that we will not be liable to pay you any profit arising from Closing Out in any circumstances unless we have agreed with you in writing otherwise.

 

10. LIABILITY

10.1 Our liability to you

(a) Subject to the other terms of this clause 10 and to the extent permitted by law, we will not be liable to you or any Third Party for:

(i) any Loss or damage, however arising, whether in contract, tort (including negligence) or otherwise (including but not limited to any loss of profits, loss of business, loss of opportunity, loss of interest on funds or loss of or damage to reputation or goodwill) arising directly or indirectly:

(A) out of Xe Au’s refusal to enter into a FX Contract in accordance with Our Terms;

(B) where we delay, freeze, block or refuse to make a payment (for example, in circumstances set out in clause 6.2) or where we terminate a FX Contract in any of the circumstances set out in clause 9.1;

(C) out of the failure or delay of any Third Party in the transmission, provision or delivery of Our Services;

(D) as a result of any fluctuation in any exchange rate, or other circumstance beyond our reasonable control, as set out in clause 11;

(E) as a result of any fraudulent or negligent acts or omissions by you or any Authorised Person;

(F) where you or an Authorised Person do not provide us with any amount we require from you by the due date in accordance with Our Terms; or

(ii) any indirect or consequential loss, whether resulting from currency speculation, from purposes associated with your personal business or from any other cause whatever, regardless of the legal basis or form of action (including Loss or damage suffered by you as a result of an action brought by a Third Party), even if we have been advised of the possibility of such Loss;

(iii) For the avoidance of doubt, You will be liable to us for all Losses which we suffer or incur relating to any fraud or fraudulent activity by you or an Authorised Person at any time.

(b) Subject to the terms of this clause 10 and to the extent permitted by law, our total liability to you for all claims arising under or in connection with Our Terms or the performance, or contemplated performance, of Our Services (whether arising in contract, tort (including negligence) or otherwise), is limited to an amount not exceeding the total amount of money actually received by us from you in respect of any particular Trade, FX Option, payment or other matter or circumstance giving rise to a claim by you.

(c) The limitation and exclusions of liability under this clause 10 are set on the basis that you are aware of the volatile nature of foreign exchange and are not participating in speculative activity.

(d) If by law, our liability cannot be excluded or limited as provided in Our Terms, then the exclusion or limitation is to be deemed to be varied so as to limit our liability to:

(i) supplying Our Services again; or

(ii) the payment of the cost of having Our Services supplied again.

(e) We are not liable to you where your acts or omissions cause or contribute to the loss or damage or where you fail to take all reasonable steps to mitigate the loss arising.

10.2 Your Liability to us

You are not liable to us where our acts or omissions cause or contribute to the loss or damage where we fail to take all reasonable steps to mitigate the loss arising.

10.3 Your Indemnity

(a) You hereby fully indemnify us and shall keep us fully indemnified in respect of all Losses which we may reasonably incur in the proper performance of Our Services and the enforcement of our rights under Our Terms, as a result of:

(i) any default in payment by you of any sum owing under Our Terms when due;

(ii) your material breach of any of Our Terms or of any other term or condition of a FX Contract or of any other term or condition relating to any of Our Services;

(iii) any fraudulent or negligent act or omission or wilful misconduct by you or any Authorised Person;

(iv) any action or steps taken by us to carry out or give effect to instructions or Requests, received from you or a person purporting to be an Authorised Person; and

(v) any termination of a FX Contract by us pursuant to clauses 9.1.

(b) You hereby also fully indemnify us and shall keep us fully indemnified in respect of all and any Loss, costs (including legal costs), claims, damages, expenses, taxes, charges and any other liability whatsoever which we may incur at any time to any Third Party in connection with our performance, or contemplated performance, of a FX Contract or any of Our Services or otherwise in connection with any instruction or Request from you or any Authorised Person.

10.4 Non-excludable liability

Nothing in this clause 10 or Our Terms limits or excludes a party’s liability:

(a) for death or personal injury caused by its negligence or wilful misconduct or that of its employees, agents or subcontractors as applicable;

(b) for fraud or fraudulent misrepresentation by it or its employees, agents or subcontractors as applicable; or

(c) where liability cannot be limited or excluded by applicable law.

 

11. CIRCUMSTANCES BEYOND OUR CONTROL

To the extent permitted by law, we are not liable to you if we are unable to perform any of our obligations to you or our performance of any of our obligations is delayed due to any circumstances outside of our reasonable control, including:

(i) any industrial action, labour dispute;

(ii) act of God, fire, flood or storm;

(iii) war, riot, civil commotion, siege, security alert, act of terrorism or any resulting precautionary measures taken;

(iv) act of vandalism, sabotage, virus, pandemic or malicious damage;

(v) compliance with any statute, statutory provision, law, governmental or court order, the actions or instructions of the police or of any governmental or regulatory body which authorises us to perform Our Services (excluding any matters that are within the reasonable apprehension of Xe Au at the time of contracting); and

(vi) cut or failure of power, failure of equipment, systems or software or internet interconnectivity or the occurrence of any.

 

12. LINKING AND FRAMING

We are not responsible for the content, policies or services of any other persons or sites linked to or accessible via Our Website. The existence of any link to any other website does not constitute an endorsement of, or association with, any such website or any person operating any such website. Any reliance on any content, policies or services of any other persons or websites are at your sole risk. Any queries, concerns or complaints concerning such websites should be directed to the persons responsible for their operation.

 

13. CONFIDENTIALITY

(a) We respect the privacy of all our customers and always aim to treat customer information as confidential and to use customer information in confidence. Details concerning how we use information provided by you, how we share your information and the steps we take to protect such information are set out in our Privacy Notice.   

(b) We will not treat your information as confidential where it is already public knowledge or where it becomes public knowledge through no fault of our own.

(c) We may disclose your information if we are required to do so by law, by a court, by court order, to meet any statutory, legal or regulatory requirement on us, or by the police or any other law enforcement agency in connection with the prevention or detection of crime or to help combat fraud, money laundering or other illegal activity.

(d) In order to provide Our Services we may rely on services of other service providers. In this context and in order to execute your FX Contract, we may be required to disclose relevant information about you to such third-party service providers to the extent necessary for us to provide you Our Services. For further detail, please see our Privacy Notice.

(e) You acknowledge and agree that we may use international intermediaries to process your Trades and FX Options and we may be required to send your personal information to those intermediaries in order to complete your Trade or FX Option.

 

14. YOUR INFORMATION

(a) Details concerning how we use your information, how we share your information, the steps we take to protect your information are set out in our Privacy Notice. We will handle your information in accordance with our Privacy Notice.

(b) Our Privacy Notice is incorporated by reference into these Terms. You acknowledge that you are bound by and have had the opportunity to read our Privacy Notice. A copy of our Privacy Notice can be found on Our Website and can also be obtained by contacting us on our contact details, at:

(c) A summary of how we collect and use your information can also be found on Our Website.

(d) We may monitor and record any telephone conversation we have with you and any Authorised Persons and make transcripts of them, with or without an automatic warning message or tone. We may store and use any recording and any transcript of any telephone conversation we have with you for the purposes of verifying the details of a FX Contract or to help us to resolve any dispute that may arise between us concerning an FX Contract or any of Our Services, for the purposes of the prevention or detection of money laundering or crime (including fraud), and for the purposes of training and quality control.

(e) You agree that we may use any information that we collect about you for the purposes of complying with our obligations under AML and CTF Laws, and for any other purposes relating to the provision of Our Services. 

(f) In accordance with AML and CTF Laws, we are required to retain and maintain certain records (including copies of identification documents and transaction records) for a period of five (5) years.

(g) You also agree that if personal information has been provided to us by or on behalf of you in relation to Third Parties connected to you, each such person has authorised you to provide such personal information to us to be used, held and disclosed in the manner set out in Our Terms.

 

15. GENERAL

15.1 Third Party Rights

(a) An FX Contract is personal to you and us. We have no responsibility to and will not perform Our Services for any Third Party under any FX Contract, unless the identity of the Third Party has been approved by us in writing prior to entering into the FX Contract. You warrant to us that you are acting as principal only and not acting for or on behalf of or as an agent for any Third Party, whose identity has not been disclosed by you in writing to us prior to applying for the Account.

(b) As set out in clause 6.9, if you are acting in a trustee, agent or partnership capacity, you agree to give the additional warranties and representations set out in Schedule 2 of Our Terms.

15.2 Severability

If any court of competent jurisdiction finds that any part of Our Terms is invalid, unlawful or unenforceable for any reason, those parts (to the extent possible) shall be deemed omitted from Our Terms without affecting the legality of the remaining parts which will (to the extent possible) remain in force and continue to be binding on you and us.

15.3 No waiver

Any failure to enforce or delay in enforcing any right, power or remedy available to you or us under Our Terms or any FX Contract (including as provided for in Our Terms or otherwise available under Australian law) will not operate as a waiver of that right, power or remedy or mean that you or we cannot exercise any such right, power or remedy at a later date.

15.4 Assignment

(a) You may not assign, transfer, charge or dispose of Our Terms or any FX Contract or any of your associated obligations, rights or privileges to any other person at any time without our express prior consent in writing.

(b) We may assign, transfer, charge or dispose of Our Terms or any FX Contract in whole or in part or any of our associated obligations, rights or privileges to any other person at any time without prior notice to you, but we will take appropriate steps to try to ensure that doing so will not harm any of your rights under the relevant FX Contracts.

(c) We may also novate our rights and obligations under Our Terms or any FX Contract to any Third Party without notice. On a novation by us, the Third Party will be the contracting party in place of us and references to us in Our Terms will be deemed to be references to the Third Party.

15.5 Dispute Resolution

Internal Complaints Procedure

(a) We value all our customers and take our obligations seriously. We have established internal procedures for investigating any complaint that may be made against us. In the event of a dispute arising out of or in connection with any FX Contract or the provision of Our Services pursuant to Our Terms, all parties agree to endeavour to resolve the dispute by engaging in good faith negotiations. 

(b) A complaint is an expression of dissatisfaction made to or about an organisation, related to its products, services, staff or the handling of a complaint, where a response or resolution is explicitly or implicitly expected or legally required. You should seek to have your complaint resolved by submitting  a complaints form online, which can be found in our Help Centre article, How to make a complaint.

External Complaints Procedure

(d) We are a member of an independent dispute resolution scheme operated by the Australian Financial Complaints Authority (AFCA) (member number 11671). Where we have been unable to adequately resolve your complaint, you will have the right to refer the complaint to AFCA either verbally, by email or in writing. Full details on how to access the AFCA scheme and make a complaint can be obtained from AFCA's website (www.afca.org.au) or by calling 1800 931 678. Resolution of your complaint by AFCA is provided free of charge.

Mediation

(e) If the dispute does not fall within AFCA's rules and has not been adequately resolved within thirty (30) days following the Complaints Manager being notified (or a period otherwise agreed between us), either party may elect to submit the dispute to mediation by providing written notice to the other party. The mediation will be in accordance with, and subject to, the ACICA Mediation Rules 2007.

Arbitration

(f) If the dispute is not settled within thirty (30) days following submission to mediation (or a period otherwise agreed between us), it may be submitted to arbitration by either party providing written notice to the other. The arbitration shall be in accordance with, and subject to, the ACICA Mediation Rules 2007.

Legal Action

(g) Nothing in Our Terms shall prevent either party from seeking an urgent injunction or appealing the arbitration decision. We are also not prevented from commencing immediate legal action to recover any amounts owing as a result of a Close Out under clause 8. You acknowledge and agree that in certain instances, we may engage a third party debt collection agency to recover on our behalf.

15.6 Notices

(a) All notices or demands under Our Terms or any FX Contracts must be given in writing (including in electronic form), unless otherwise specified in Our Terms or expressly agreed by us in advance in writing and written in English. Notices or demands may be given to, or served on a party as follows:

(i) Where it is to be given by you, it must be sent by:

or to such other email or address in Australia which we tell you to use by notifying you in advance in writing in accordance with Our Terms; and

(ii) where it is to be given by us, it must be sent by email to the last email address which we hold for you, by fax to the last fax number we hold for you or by post or personal delivery to the last postal address we hold for you, or to such other email or postal address in Australia which you tell us to use by notifying us in advance in writing in accordance with the provisions of our Terms;

(b) Any notice or demand made under Our Terms will be deemed to be delivered as follows:

(i) if sent by domestic post, two (2) Business Days after it is posted;

(ii) if sent by facsimile, at the earlier of the time of receipt of a correct and complete transmission report by us at the close of transmission or acknowledgement from you of the facsimile;

(iii) if sent by email, at the time sent by the sender to the recipient (provided that the sender has not received an undeliverable message); and

(iv) if delivered by hand, at the time personally delivered.

15.7 Entire Agreement

We intend to rely on the Contract Note and Our Terms as constituting the entire agreement and understanding in relation to the subject matter of the Contract Note. You agree that the Contract Note and Our Terms supersede all oral communications and prior writing in relation to them. If you require any changes, please make sure you ask for them to be put in writing. Neither we nor you may alter the terms of this agreement without the agreement of the other (other than as provided for in clause 15.8 below). This clause does not exclude any liability we may have to you for fraud or prevent you from bringing any claim against us for fraud or fraudulent misrepresentation.

15.8 Variation

(a) Changes to Our Terms can only be made as provided for in clause 2 or where you and we together agree in writing to such changes (and which will generally only be in exceptional circumstances). Our Terms can never be altered, changed or varied verbally.

(b) You may not unilaterally alter, vary or make any change to Our Terms. You may however alter, vary or change any term of Our Terms where we agree this with you. Where we agree this with you, the fact of our agreement will be communicated to you orally or in writing and, where it is communicated to you orally, confirmed in writing.

15.9 No joint venture, agency or partnership

Nothing in Our Terms or in a FX Contract is intended to create any relationship of joint venture, agency, partnership, employment or franchise between you and us at any time, nor impose any fiduciary duty on us. We do not owe you any duty to offer you the best possible price or terms in your favour, nor are we required to act in your best interests. Neither you nor we shall have any authority to act as agent for or to bind the other one of you or us at any time in any way.

15.10 Conflict

In the event of any conflict between any terms or conditions in any other documentation or materials provided to you by us at any time pursuant to a FX Contract, unless expressly stated otherwise in such documentation or materials, Our Terms shall always prevail.

15.11 Exercise of Discretion

We have discretions under Our Terms which can affect your Account and FX Contracts. You do not have any power to direct how we exercise our discretions. When exercising our discretions, we will comply with our legal obligations. We will have regard to (but not be bound by) our policies and have regard to managing risk (including financial, credit and legal risks) for us and all of our clients, our obligations to our counterparties, market conditions and our reputation. We will always try to act reasonably in exercising our discretions, but we are not obliged to act in your best interests or to avoid or minimise a loss in the Account.

15.12 Taxes

You acknowledge and agree that we do not collect tax for any authority in any form or manner unless required by law. It is your sole obligation to calculate and pay all taxes applicable to you. You must provide accurate FATCA and CRS details to us.

15.13 Disclosures

(a) Without limiting any other method by which we may be permitted to provide a disclosure document, you acknowledge and agree that any disclosure statement or other document required to be given to you by law may be given to you by being placed on Our Website or sent by electronic means to the email address nominated by you in the Application Form or subsequently nominated by you in writing.

(b) You acknowledge and agree that you have been provided with, and have had the opportunity to read, our PDS and our FSG.

15.14 Non-excludable liability (if any)

These Terms do not attempt or purport to exclude liability arising under statute if, and to the extent, that such liability cannot be lawfully excluded.

15.15 Statutory Obligations

Nothing in these Terms affects our obligations as a Registered Financial Service Provider and Australian Financial Services Licensee.

15.16 Intellectual Property

(a) You may only use Xe Materials for personal use, and only as necessary in relation to Our Services.

(b) You may not, directly or indirectly:

(i) transfer, sublicence, loan, sell, assign, lease, rent, distribute, or grant rights in the Xe Materials to any person or entity;

(ii) modify, copy, tamper with, or otherwise create derivative works of the Xe Materials; or

(iii) apply any processes to determine source code of any software included in the Xe Materials or as part of Our Services.

15.17 Linking to Our Website

(a) You may link to Our Website, provided that:

(i) you do so in a way that does not damage our reputation;

(ii) you do not imply that any association, approval, or endorsement on our behalf exists where it does not;

(iii) you do not frame or mirror Our Website elsewhere; and

(iv) your usage complies with our relevant policies.

(b) We reserve the right to withdraw permission to link to our website without prior notice to you.

15.18 Closing your account

(a) You may close your Account at any time by contacting Customer Support.

(b) If you still have funds in your Account at the time of closure, you must withdraw your money within a reasonable period of time. After a reasonable period of time, you will no longer have access to your Account but can make a withdrawal by contacting Customer Support.

(c) You must not close your Account to avoid an investigation. In such circumstances, we may hold your funds until the investigation is fully completed in order to protect the interest of Xe or a third party.

(d) You are responsible for your Account after closure and agree that you will continue to be responsible for any and all obligations relating to your Account, even after it has been closed.

__________________

Schedule 1 – FX Options

1. Interpretation

In this Schedule 1, the following words have the following meanings:

2. Incorporation of FX Option Terms

(a) These FX Option Terms apply to all FX Options and/or Structured FX Options issued by us to you. These terms are additional to and supplement Our Terms. Where there is any conflict, these FX Options Terms shall prevail.

(b) FX Options and/or Structured FX Options are complex financial products. You agree by entering into an FX Options and/or Structured FX Options that you have read and understood these terms.  If you do not, you should not enter into them.

 

3. Instructions

(a) We may at our absolute discretion provide you with a FX Option and/or Structured FX Option quotation from time to time, which will provide details as set out in clause 3 of these FX Option Terms.

(b) We may change the Premium stated in the quotation prior to you and us entering into a FX Option.

(c) Clauses 4 and 5 of Our Terms applies to FX Options as if a FX Option was a Trade, and is incorporated into and forms part of this Schedule 1 with the following changes:

(i) references to “Trade(s)” are replaced with “FX Option(s)” and/or “Structured FX Option” (as appropriate); and

(ii) you may only make a Request for a FX Option and/or Structured FX Option over the telephone or by email from your designated email address.

 

4. Details to be included in the Contract Note

(a) The Contract Note of a FX Option will include the following (as applicable):

(i) quotation/confirmation date and time of transaction;

(ii) the currency and amount sold to Xe Au (Sale Currency);

(iii) the currency and amount bought from Xe Au (Purchase Currency);

(iv) FX Option product type or description, for example (but not limited to):

(A) Collar;

(B) Participating Forward;

(C) Knock-in Forward;

(D) Expiration Date;

(E) Expiration Time;

(v) Settlement date;

(vi) FX Protection Rate (if applicable);

(vii) Participation Rate (if applicable);

(viii) Knock-In Rate (if applicable);

(ix) FX Guaranteed Rate; (if applicable)

(x) Premium payable/due (if applicable); and

(xi) Premium Payment Date (if applicable).

(b) We may, at any time and at our sole discretion, amend the contents or format of our Contract Note from time to time for formatting, marketing, regulatory, legal and/or other business reasons. 

5. Financial Provisions

(a) We may, at any time and at our sole discretion, value each FX Option or Structured FX Option and reasonably require you to make Margin and/or Additional Margin payments to us in respect of the FX Option.

We will ordinarily value an FX Option by reference to the Market Rate. For example, an FX Option with a ‘strike price’ that is lower than the market price of the underlying asset is “out of the money”. If a Structured FX Option is out of the money, we may make a ‘Margin Call’ to secure your position and mitigate our risk.

(b) The performance by us of the FX Option is subject to payment by you to us of the Premium by the Premium Payment Date and/or any Margin by the Margin Payment Date.

(c) You must pay the Premium into the Our Nominated Account or other account specified by us no later than the Premium Payment Date or in the case of Margin, by the Margin Payment Date.

(d) The Premium and/or Margin (as the case may be) must be paid in the agreed currency and amount.

(e) The Premium is not refundable under any circumstances, in whole or in part.

(f) We may (at our sole discretion) use any Margin amounts paid to us to set off any debts or liabilities incurred on your Account in accordance with Our Terms.

(g) Failure by you to pay the Premium by the Premium Payment Date and/or any Margin by the Margin Payment Date, is a fundamental breach of Our Terms and entitles us to exercise our rights under clause 8 of Our Terms.

6. Process of Exercise

Premium FX Option

(a) The FX Option will be deemed to be Exercised when you give valid notice to Exercise the FX Option.

(b) A notice to Exercise will only be valid if completed on the Expiration Date before the Expiration Time, by you notifying us of your wish to Exercise the FX Option and we have responded to and acknowledged receipt of such notification.

(c) Upon valid Exercise of the FX Option by you, or Exercise of the FX Option by us in accordance with clause 7 of these FX Option terms, a Spot Trade will automatically come into force between us and you on the terms set out in the FX Option Contract Note and Our Terms, as they apply to Spot Trades.

(d) You must sell and make delivery of the specified amount of the Sale Currency to us, and you must buy and take delivery of the specified amount of the Purchase Currency from us on the specified settlement date. We will confirm the details of the Spot Trade by emailing to you a Contract Note of the Spot Trade.

(e) If no notice is received by us by the Expiration Time on the Expiration Date and we do not Exercise the FX Option in accordance with clause 7 of these FX Option Terms, the FX Option will expire at that time.

Structured FX Option

(a) If you enter into a Structured FX Option (offered at our sole discretion), you may exercise the Structured FX Option on the Expiration Date by giving valid notice to exercise the Structured FX Option to us by telephone to your usual relationship manager or alternative manager with the contact details advised to you by us in writing. You will then be requested to confirm that notice by email to us to confirm your instructions in writing. A notice to exercise will only be valid if provided on the Expiration Date before the Expiration Time.

(b) We do not monitor your Structured FX Option. We are not obliged to remind you of your Expiry Time or Expiry Date. If we contact you for any reason prior to the Expiry Time that does not imply that we have any duty to notify or remind you of your obligations.

(c) We may exercise the Structured FX Option on the Expiration Date by giving notice of exercise to you before the Expiration Time, as permitted under these FX Options Terms or Our Terms.

(d) You are responsible for ensuring you and/or your representatives are contactable at the address details provided to us and that any excise of a Structured FX Option by us will be considered valid, where we have made reasonable attempts to contact you but fail to do on the contact details provided.

(e) The valid exercise of a Structured FX Option gives rise to a Trade (or series of Trades) between you and us, for which the exchange will be the agreed rate cited on the applicable Contract Note, which will also cite the Protection Rate or Participation Rate (as applicable) of the Structured FX Option that has been exercised and the other terms of the FX Contract will be in accordance with the terms of the original Structured FX Option. 

For the avoidance of doubt, clause 9 of Our Terms regarding the consequences of termination applies to all FX Options and Structured FX Options as if these FX Contracts were a Trade.  

 

7. Exercise by us if FX Option Is “In-The-Money”

(a) We may, but are under no obligation to, exercise the FX Option on your behalf if the FX Option is “In-The-Money” at the time of expiration. If there is volatility in the market for the Purchase Currency and/or the Sale Currency or the FX Option is not (in our opinion) materially “In-The-Money” then we may elect not to exercise the FX Option (at our sole discretion).

(b) You acknowledge that you are aware that you must notify us by the date specified by us if you do not want us to Exercise the FX Option on your behalf.

(c) We will not be liable to pay to you any potential profits derived from any ‘In-The-Money’ FX Option, unless otherwise agreed with you in writing. As set out in Our Terms, we do not permit the use of Our Services (including FX Options) for investment or speculative purposes.

Option Restructuring

(a) We may restructure certain FX Options on your behalf by closing out positions on options structures, before expiry, and/or entering into new positions upon acceptance of Restructure Terms by you. By netting relevant FX Options, closed out contracts are set off against each other. These contracts are then removed from your account, which ensures that we only hold open contracts on your account for you. Prior to any Option Restructuring, we will send you Restructure Terms by email which you will be required to confirm is correct and accept, either verbally or in writing to us. You indemnify and hold us harmless against any loss incurred by you or any third-party as a result of Option Restructuring.

(b) Subject to agreement Xe Au may facilitate the pre-delivery of the protected amount on FX options for clients. Xe Au enters into offsetting entries on the clients account to facilitate pre-delivery and maintain the outcomes/features of the original option until the Expiry Date and Time.

 

8. General

(a) You acknowledge and agree that, by entering into any FX Options transaction with us, you have been properly classified as a Wholesale Client (which will be confirmed to you by us). You must provide us with information relating to your current Wholesale Client status, which is no more than two (2) years old. You agree to provide us with additional information immediately on request to ensure we can satisfy ourselves of your classification as a Wholesale Client in accordance with the requirements under Corporations Act 2001 (if you are based in Australia), or Financial Markets Conduct Act 2013 (if you are based or registered with us in New Zealand). We may in our absolute discretion determine you are not a Wholesale Client for the purpose of entering into any FX Option product.

(b) Our Terms apply generally to all FX Options, but if there is any inconsistency between Our Terms and these FX Option Terms, these FX Option Terms will prevail to the extent of the inconsistency.

Schedule 2 – Trustee Additional Representations, Warranties and Undertakings

1. Incorporation of Additional Representations, Warranties and Undertakings

These terms are additional to and supplement Our Terms.

 

2. Trustee of a Trust

If you are acting in capacity as trustee of a trust, you represent and warrant to us that:

(a) the trust has been duly constituted and is validly existing in compliance with all applicable laws and the trust deed constituting the trust has been duly executed and duly stamped, in each case in accordance with the laws of Australia;

(b) the trust deed and its constituent documents enable you to enter into a FX Contract, bound by Our Terms, and any other of your agreements with us despite any conflict of interest and duty which may arise on the your part; and, if you are a company, any of the your directors, when entering into the Trades or FX Options contemplated with us;

(c) all necessary resolutions have been duly passed, all consents have been obtained and all other procedural matters have been attended to as required by the trust deed, any other document or any law for the entry into, observance and performance by you of your obligations under Our Terms;

(d) each of your obligations under, and the Trades or FX Options contemplated by, Our Terms constitute binding obligations and are completely and lawfully enforceable against you and the trust's property in accordance with their terms;

(e) you are not breaching the trust deed by entering into, and performing your obligations pursuant to, a FX Contract, nor have you acted in a manner that is inconsistent with your obligations as trustee, where such breach or action may affect your recourse to the assets of the trust or the enforceability of a FX Contract;

(f) our rights under Our Terms and any other of your agreements with us have priority over the interests of the beneficiaries of the trust;

(g) you have been validly appointed as trustee of the trust and are the only trustee of the trust;

(h) no action has been taken, or has been proposed, to remove you as trustee of the trust, or to appoint additional or alternate trustees;

(i) no property of the trust has been re-settled, set aside or transferred to any other trust or settlement;

(j) the trust has not been terminated, nor has the date or any event for the vesting of the Trust's property occurred;

(k) no determination has been made to distribute the trust's property on a date which is earlier than the latest date under the trust deed by which the trust's property must be distributed;

(l) there is no conflict of interest on your part in entering into Our Terms and performing your obligations under them or the Trades or FX Options contemplated by them;

(m) each of the manager and the investment manager of the trust (if applicable) is authorised to act on your behalf and to instruct us in relation to any dealing and in relation to all other matters arising under Our Terms;

(n) you will be bound by any instructions given to us by or any actions of the manager or the investment manager (as the case may be) as if the actions of the investment manager were your actions for the purpose of Our Terms;

(o) you authorise each of the managers and the investment managers to accept any notices or documents on your behalf and if we have an obligation to serve any document or notice on you pursuant to Our Terms, or any law, service upon either the manager or the investment manager (as the case may be) will be effective service on you;

(p) you have an unrestricted right to be fully indemnified or exonerated out of the trust's property, before the claims of the beneficiaries, in respect of any losses or liabilities incurred by you (except only in respect fraud or breach of the trust deed of or your trustee duties) and the trust documents do not restrict our right to have recourse to the assets of the trust to satisfy any liability to us properly incurred by you arising out of the Trades or FX Options contemplated with us and the trust's property is sufficient to satisfy that right of indemnity or exoneration;

(q) you have complied with your obligations in connection with the trust;

(r) you are authorised to open bank accounts; and

(s) you are authorised to enter into contracts in relation to trust property, in your personal capacity.

 

3. Responsible Entity of a Fund

If you are a responsible entity or corporate collective investment vehicle (CCIV) holding company of a fund (Fund):

(a) you undertake that you must not retire as responsible entity or CCIV holding company of the Fund unless you give notice to us of your intention to retire and upon satisfaction of the following conditions:

(i) the successor responsible entity must be acceptable to us; and

(ii) the successor responsible entity must execute whatever documents that we reasonably require to ensure that Our Terms are binding on it.

(b) you will (or will procure that the following will be done) in relation to the Fund, ensure that other than with our prior consent:

(i) the constitution of the fund (Fund Constitution) is not amended in any way which could have a material adverse effect on your ability to comply with your obligations under Our Terms or could otherwise be prejudicial to us;

(ii) the Fund Constitution is not revoked;

(iii) if you determine that the Fund Constitution, the compliance plan for the Fund, or any custodian or other agency agreement entered into by you in connection with the Fund is required by law to be changed or replaced, you will promptly give to us full details of the requirement and copies of the documentation you propose to enter into to comply with that requirement;

(iv) there is no re-settlement, setting aside or transfer of any asset of the Fund other than a transfer which complies with the Fund Constitution and Our Terms;

(v) your obligations under the Fund Constitution and at law are fully complied with;

(vi)  except in accordance with this clause 3, no other person is appointed responsible entity of the Fund;

(vii) subject to legislative requirements and except if, and to the extent that, you have retired as responsible entity of the Fund in accordance with this clause 3, nothing is done which would cause or enable your removal as responsible entity of the Fund, nor retire as responsible entity;

(viii) appoint a custodian or other agent to carry out any of your functions as responsible entity of the Fund;

(ix) terminate the appointment of any custodian or other agent appointed in accordance with paragraph 2(b)(viii) of this clause 3;

(x) the vesting date under the Fund Constitution is not changed or fixed;

(xi) subject to the legislative requirements, nothing occurs which could limit, exclude or otherwise derogate from in any material way your right under the Fund Constitution and the general law to be indemnified out of the assets of the Fund; and

(xii) subject to the terms of the Fund Constitution and the general law, your lien over the property of the Fund will have priority over the rights of the members of the Fund.

(c) you represent and warrant in relation to the Fund as follows:

(i) the Fund has been duly constituted and is validly existing in compliance with all applicable laws and the Fund Constitution has been duly executed and duly stamped, in each case in accordance with the laws of Australia;

(ii) the Fund Constitution and its constituent documents give you power:

(iii) to carry on all of the business activities now conducted by you in any capacity;

(iv) to enter into and comply with your obligations under, and to carry on the Trades and FX Options contemplated by, Our Terms;

(v all necessary resolutions have been duly passed and all consents have been obtained and all other procedural matters have been attended to as required by the Fund Constitution, any other document or any law for the entry into, observance and performance by you of your obligations under Our Terms;

(vi) each of your obligations under, and the Trades and FX Options contemplated by, Our Terms constitute binding obligations and are completely and lawfully enforceable against you and the Fund's property in accordance with their terms;

(vii) you are the only responsible entity of the Fund;

(viii) no property of the Fund has been re-settled, set aside or transferred to any other trust or settlement;

(ix) the Fund has not been terminated, nor has the date or any event for the vesting of the Fund's property occurred;

(x) no determination has been made to distribute the Fund's property on a date which is earlier than the latest date under the Fund Constitution by which the Fund's property must be distributed;

(xi) there is no conflict of interest on your part in entering into Our Terms and performing your obligations under them or the Trades or FX Options contemplated by them;

(xii) except as required by applicable legislation and except to the extent expressly stated in the Fund Constitution, your rights under the Fund Constitution and the general law to be indemnified out of, and have a lien over, the assets of the Fund have not been limited in any way;

(xiii) without limitation you have no liability which may be set-off against that right of indemnity; and

(xiv) you have complied with your obligations in connection with the Fund.

4. Trustee of a Superannuation Fund

If you are a trustee of the superannuation fund (Fund), you represent and warrant to us that:

(a) the Trades and FX Options contemplated by Our Terms insofar as they concern the Fund:

(i) comply with all requirements of the Superannuation Industry (Supervision) Act 1993 (Cth) (SIS Act);

(ii) have been or are to be implemented in accordance with an written investment strategy undertaken in accordance with the SIS Act;

(iii) comply with all the requirements of the constitution of the Fund ("Fund Constitution") and rules applicable to the Fund, in force at the date of Our Terms; and

(iv) have been or are undertaken on an arm's length basis, for value and on commercial terms.

(b) the Fund has been duly constituted and is validly existing and the Fund Constitution has been duly executed and duly stamped, in each case in accordance with the laws of each State and Territory of Australia;

(c) the Fund Constitution and its constituent documents give you power:

(i) to carry on all of the business activities now conducted by you in any capacity;

(ii) to enter into and comply with your obligations under, and to carry on the Trades and FX Options contemplated by, Our Terms;

(d) all necessary resolutions have been duly passed and all consents have been obtained and all other procedural matters have been attended to as required by the Fund Constitution, any other document or any law for the entry into, observance and performance by you of your obligations under Our Terms;

(e) each of your obligations under, and the Trades and FX Options contemplated by, Our Terms constitute the Fund’s binding obligations and are completely and lawfully enforceable against you and the property in accordance with their terms;

(f) you are the only trustee of the Fund;

(g) no property of the Fund has been re-settled, set aside or transferred to any other trust or settlement;

(h) the Fund has not been terminated, nor has the date or any event for the vesting of the property occurred;

(i) no determination has been made to distribute the Fund's property on a date which is earlier than the latest date under the Fund Constitution by which the Fund's property must be distributed;

(j) there is no conflict of interest on your part in entering into Our Terms and performing your obligations under them or the Trades or FX Options contemplated by it;

(k) you have an unrestricted right to be fully indemnified or exonerated out of the Fund's property in respect of any losses or liabilities incurred by you and the Fund's property is sufficient to satisfy that right of indemnity or exoneration; and

(l) you have complied with your obligations in connection with the Fund.

5. Agent under Investment Management Agreement

If you are an agent of a client (Investor) who has entered into an agreement relating to the holding and investment of assets (Investment Management Agreement):

(a) You will ensure that without our prior consent:

(i) the Investment Management Agreement is not determined or amended in any way which could have a material adverse affect on your ability to comply with your obligations under Our Terms or could otherwise be prejudicial to us; and

(ii) your obligations under the Investment Management Agreement and at law are fully complied with.

(b) You represent and warrant to us that:

(i) you have received written acknowledgment from each Investor to the effect set out in the remainder of this paragraph 4(b) and paragraph 4(c) of this Schedule 2 and you are not aware of anything that causes you to suspect that anything in those paragraphs is incorrect;

(ii) the Investment Management Agreement is valid and binding on you and the Investor, respectively;

(iii) you have the power, as agent for the Investor under the Investment Management Agreement, to enter into and observe all the provisions and to carry on the Trades and FX Options contemplated by, Our Terms as agent for the Investor;

(iv) the Investor will be bound by instructions provided by you to us as if the Investor were named in these Terms as you and will be bound by any Trade and/or FX Options entered into by us on your instructions;

(c) if an Investor is a trustee, the Investor has warranted to you, and you reasonably believe that the Investor is empowered by the relevant trust deed and law:

(i) to enter into and comply with its obligations under, and to carry on the Trades or FX Options contemplated by, the Investment Management Agreement and each FX Contract entered into by you on their behalf in connection with Our Terms; and each of its obligations under, and the Trades and FX Options contemplated by, the Investment Management Agreement constitute binding obligations and are completely and lawfully enforceable against it and the relevant trust's property in accordance with their terms;

(ii) to enter into and perform the Investment Management Agreement and each FX Contract entered into by you on their behalf in connection with Our Terms and to carry on the Trades and FX Options contemplated by Our Terms;

(iii) to carry on the trust's business as now conducted or contemplated and to own the trust's assets, in their capacity as trustee of the relevant trust; and there are no restrictions or conditions on this; and

(iv) all other procedures have been completed as required by the relevant trust deed for you to enter into and perform the Investment Management Agreement and Trades and/or FX Options entered into by you on their behalf in connection with Our Terms (this includes all necessary resolutions and all consents and approvals); and

(d) you enter into Our Terms as agent of each of the Investors and in your personal capacity.

6. Partnerships

If you are acting in a partnership capacity, you warrant that:

(a) the partnership has been validly established;

(b) you have the power and authority to enter into and perform your obligations under Our Terms and each FX Contract;

(c) each person who is a member of partnership or a partner is liable separately, and together other partners, is liable jointly, for your obligations under Our Terms;

(d) you will promptly notify us if you intend to retire or another person becomes, or ceases to be, a partner of the partnership at any time;

(e) you and each person who is a partner at the time of entering into the relevant FX Contracts will continue to be bound by Our Terms and the relevant FX Contracts, in the event that:

(i) you or a relevant former partner ceases to be a member of the partnership;

(ii) the partnership ceases to carry on business;

(iii) there are any changes in the partnership or any reconstitution of the partnership (whether by death, incapacity, retirement or admission of a partner); and

(f) you will procure the execution of any documentation that we reasonably require.