AUSTRALIA CORPORATE TERMS AND CONDITIONS
- Changes to our terms
- Language and applicable law
- Financial markets
- Formation of contract
- Your responsibility to us
- Our responsibility to you
- Our liability
- Circumstances beyond our control
- Linking and framing
- Your information
- Schedule 1 – FX options
- Schedule 2 – Trustee additional representations, warranties and undertakings
Foreign Exchange Services Version 2.0 02/2022
Our Services in Australia are provided by HiFX Limited (trading as ‘Xe’, ‘Xe.com’ or ‘Xe New Zealand’) (Xe NZ), a Registered Financial Service Provider under the Financial Services Providers (Registration and Dispute Resolution Act) 2008 (NZ) and regulated by the Financial Markets Authority in New Zealand. Xe NZ holds a New Zealand Market Services Licence (MSL) No. FSP94961 and is authorised as a derivatives issuer, including providing forward FX contracts and trading financial products or FX on behalf of other persons. Xe NZ also holds an AFSL No. 240914 and is authorised to provide financial product advice in respect of, deal in, and make a market for FX and derivative products for retail and wholesale clients. HiFX Australia Pty Ltd (Xe AU) is also authorised by the Australian Securities and Investments Commission as an Australian Financial Services Licensee (AFSL No. 240917) for the provision of financial services. Xe NZ and Xe AU form part of the Xe Group.
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 can be terminated and the extent to which we may be liable to you.
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 which are formed between us and you.
In particular, your attention is drawn to the following clauses:
(a) Clause 4.1, which emphasises that any information provided by us is not to be relied upon as personal advice, 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 6.3, which outlines the purposes for which you may use Our Services. We do not allow Our Services to be used for investment or speculative purposes;
(c) Clause 7.4, which 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 per cl. 7.4.7; and
(d) Clause 8.6, which sets out the consequences which will apply following termination of an FX Contract prior to the originally agreed date or prior to settlement.
Our Terms apply to Our Services which are as follows:
(e) Foreign Exchange Trades ("Trades"), whereby you send us money in one currency ("the Sale Currency") in exchange for us sending money to a nominated account in another currency ("the Purchase Currency");
(f) FX Options, which are only offered to Wholesale clients; and
(g) the Account, which you must have with us for the management of Trades and FX Options.
1.1 In Our Terms the following words have the following meanings:
“Acceptance” means our acceptance of a Request by you to enter into a Trade and/or a FX Option, as communicated to you in a manner outlined in clause 5.5;
"Account" means a running account maintained by us for the purpose of recording credits and debits in relation to Trades and FX Options, Margin Payments and other financial requirements;
“Additional Margin” means any additional sum of money on top of the Margin which we may require from you (otherwise referred to as a Margin Call), for example in the event of a Variation on a Trade or FX Option;
“AML and CTF Laws” means the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth), the Anti-Money Laundering and Counter-Terrorism Financing Rules 2007 (Cth); Anti-Money Laundering and Countering Financing of Terrorism Act 2009 (NZ) and any other applicable laws, rules, regulations and other subordinate instruments in New Zealand which relate to aspects of anti-money laundering and/or counter terrorist financing, and equivalent laws, rules and regulations in other applicable jurisdictions;
"Application Form" means the form of application by which you apply to become our client and to open an Account, by whatever means that the form is given (including in electronic form) and requiring such information as we require from time to time;
"Australian Client Money Rules" means Part 7.8 of the Corporations Act 2001 (Cth), the corresponding regulations in the Corporations Regulations 2001 (Cth), the ASIC Client Money Reporting Rules 2017, the ASIC Regulatory Guide 212 and any other applicable Australian laws, rules and regulations;
“Authorised Person” means a living individual who is authorised by you and accepted by us to provide us with instructions on your behalf;
“Beneficiary Account” means the account, which you provide us with the details of, belonging to a Third Party which is to be the recipient of money;
“Business Day” means a day on which the trading banks are open for business in Auckland, New Zealand (excluding a Saturday, Sunday or public holiday);
"Business Hours" generally means between 8:00 a.m. and 5:30:00 p.m. on Business Days (Auckland time);
“Client Trust Account" means a trust account held with an Australian ADI, an approved foreign bank or a cash management trust for the purpose of complying with the Australian Client Money Rules;
“Close Out” means a termination of a Trade prior to the originally agreed date or prior to settlement of a Trade;
“Close Out Contract Note” means a Contract Note produced by us upon Close Out to record the terms on which we have Closed Out a Trade which was terminated prior to the date it was due to be settled;
“Close Out Cost” means the difference between the amount of the Purchase Currency in the Contract Note and the amount of the Purchase Currency needed to purchase the amount of the Sale Currency in the Contract Note at the Market Rate upon Close Out, where the latter exceeds the former;
"Contact Details" Email: email@example.com;
Phone: 0800 932 664 or +64 9 306 3700; or
Post: PO Box 7646, Wellesley Street, Auckland, New Zealand;
“Contract Note” means the document (electronic or otherwise written) produced by us which outlines the Trade we have agreed to perform for you or the FX Option entered into and any specific requirements concerning that Trade or FX Option, which will be sent to you following our Acceptance, save for a Close Out Contract Note;
“Forward Trade” means a foreign exchange transaction forming part of Our Services where you ask us to secure an exchange rate now but to make the transaction on a pre-determined future date more than two (2) Business Days after Acceptance and up to 12 months after Acceptance;
“Further Loss” means any such loss that we make or liability that we incur as a result of termination of the Trade, other than that resulting from a Close Out (for example, any expenses, premiums, commissions or other fees incurred by us);
“FX Contract” means the contract between you and us for the provision of a FX Option or the performance of a Trade, including any contract for or in relation to an FX Option or Structured FX Option (as applicable);
"FX Option" means an agreement by which you have the right but not the obligation to enter into a Trade with us as set out in more detail in Schedule 1 of Our Terms;
"Hedge Contract" means a contract, or other instrument between us and a Hedge Counterparty, concluded for the purpose of hedging our exposure to foreign exchange transactions with our clients;
"Hedge Counterparty" means any bank, related body corporate of a bank or other regulated financial corporation which is a counterparty to us in our contractual dealings to hedge our exposure to foreign exchange transactions with clients;
“Limit Order” means a Market Order involving a foreign exchange transaction forming part of Our Services on the basis of a prior instruction we receive from you to transact at a predetermined target exchange rate (which is better than the exchange rate that is available to you when you place the order) and at which you wish to transact;
"Loss" means a damage, loss, expense or liability incurred by the person concerned, however it arises and whether it is present or future, fixed or unascertained, actual or contingent;
“Market Order” means a foreign exchange transaction forming part of Our Services where we receive a Limit Order or Stop Loss Market Order instruction from you to buy or sell a currency at (or, in the case of a Stop Loss Market Order, at or around) a predetermined target exchange rate which includes an Online Market Order;
“Market Rate” means the rate obtained by us from a live market feed at the time of Execution;
"Our App" means the 'XE Currency Converter & Global Money Transfers' mobile application provided by the Xe Group, available at https://www.xe.com/apps/;
"Our Documentation" means any written document (including in electronic form) that we may provide you with requiring such information from you as we require from time to time concerning the provision of Our Services to you;
“Online Market Order” has the meaning set out in clause 7.7.1 and further detailed in clauses 7.7.2 and 7.7.3;
"Our Website" means any online or electronic services provided or made available by the Xe Group, through which we may provide Our Services – including (but not limited to) Our Website or Our App;
“Our Services” means the financial service of issuing a Trade or FX Option to you, managing the Trade or FX Option (including settlement or execution), the Account and all ancillary services;
“Our Terms” means these terms and conditions of business for Our Services;
“Our Nominated Account” means the bank account that we nominate into which you must pay us any sums due to us relating to any of Our Services;
“Privacy Laws” means the Privacy Act 1988 (Cth), and all other applicable laws in Australia relating to protection of personal information;
“Purchase Currency” means the money you are entitled to following settlement of a Trade, otherwise referred to as Bought Currency;
“Request” means your request for:
- a Trade through the Online Services system, by email from your designated email address or over the telephone; or
- an FX Option over the telephone or by email from your designated email address,
(although we reserve the right to require written confirmation of a Request by you, prior to accepting the Request);
"Retail Client" has the same meaning as section 761G of the Corporations Act 2001 (Cth), namely a client that is not a Wholesale Client or a Sophisticated Investor;
“Reversal Transaction” means the currency transaction we may enter into in the market upon Close Out in terms which are the reverse of any Trade not yet completed and which may be at a different exchange rate from that relating to the Trade;
“Sale Currency” means money in the currency you have contracted to sell, as set out in the Contract Note relevant to the Trade (otherwise referred to as Sold Currency);
"Same Day Trade" means a Trade whereby the Sale Currency is sold for the Purchase Currency by the end of the same Business Day;
"Security Information" means any details enabling you to access our Online Service or to use any of Our Services, including (but not limited to) an email address, logon code or password used by you (or an Authorised Person);
“Security Payment” means the amount (otherwise referred to as Initial Margin) which we may ask you to provide us with in advance as part payment of the Sale Currency to secure a Trade. Once payment has been made to us, and we have received cleared funds, that amount will be credited to your Account, however any Margin or Additional Margin credited to the Account will not constitute a debt by us to you;
"Specified Bank" has the same meaning as defined in regulation 5 of the Financial Markets Conduct Regulations 2014 (NZ), namely a registered New Zealand Bank, a bank that is authorised to accept deposits under the law of Australia, Canada, Hong Kong, Ireland, Singapore, the United Kingdom or the United States of America, or any other overseas bank that is subject to regulatory controls substantially the same as those applying in New Zealand;
"Sophisticated Investor" has the same meaning as section 761GA of the Corporations Act 2001 (Cth), namely a client:
(a) that acquires a financial product, not for use in connection with a business, from a financial services licensee;
(b) as determined by the licensee to its satisfaction, has previous experience in investing in financial products that allows the client to assess the merits, value, associated risks, required information and adequacy of the licensee's information;
(c) that is provided with a written statement by the licensee as to its reasons for this determination; and
(d) that signs a written acknowledgement (either before or after the product is provided) that (1) the licensee has not provided a Product Disclosure Statement or any other document required to be given to a Retail Client and (2) the licensee does not have any obligation to the client that it would have to a Retail Client;
“Spot Trade” means a Trade forming part of Our Services where the Value Date is within two (2) Business Days of the date of Acceptance. That is, T+2 T=today plus 2 business days;
“Spread” means the profit we make on the Trade;
“Stop Loss Market Order” means a Market Order involving a foreign exchange transaction forming part of Our Services on the basis of an instruction we receive from you which specifies a minimum predetermined target exchange rate at or around which you are willing and wish to transact;
"Swap Trade" means a Trade in which two foreign exchange contracts – a Spot Trade and a Forward Trade – are packaged together to offset each other (albeit with different Value Dates and exchange rates);
“Target Rate” means the rate at which a Market Order is executed, being at (or, in the case of a Stop Loss Market Order, at or around) the exchange rate specified by you for the Market Order including the profit we make on the Trade;
“Third Party” means any person other than you or us, including (without limitation) any body corporate, limited liability company, partnership, group company or associated company;
“Trade” means any foreign exchange transaction which you authorise us to make involving you selling us Sale Currency in return for you buying Purchase Currency forming part of Our Services, namely any Same Day Trade, Spot Trade, Forward Trade, Swap Trade, Market Order or Same Currency Payment);
“US Sanction Laws” means any applicable laws and regulations in the United States, including (without limitation), those administered by the Office of Foreign Assets Control of the United States Department of Treasury;
“Value Date” the date on which the Trade will mature or settle (as applicable) as specified by us;
“Variation” means the difference between the original value of a Trade and the value if the Trade was immediately Closed Out (for example, as a result of exchange rate movements on a Forward Trade), up to a maximum of the full value of the Trade;
"Volatile Market Conditions" means abnormal or unusual conditions in any foreign currency market that, in our opinion, results in, or is likely to result in, a material effect, volatility or uncertainty in the price or availability of any currency;
“we”, “our” or “us” refers to HiFX Limited (trading as ‘Xe.com’ or ‘Xe New Zealand’), which is a company incorporated in New Zealand (Company number 1121503, registered office at Level 4, Staircase Financial Management House, 32 Mahuhu Crescent, Auckland, 1010, New Zealand), and provides Our Services;
"Wholesale client" has the same meaning as section 761G of the Corporations Act 2001 (Cth);
‘‘Xe Group” refers to Xe NZ Europe Limited, Xe Europe B.V., Xe NZ Australia Pty Ltd, Xe NZ Limited, Xe Corporation Inc., Xe NZ Canada Inc. and Continental Exchange Solutions Inc. dba “Xe” or “Xe.com”, each being a wholly owned subsidiary of Euronet Worldwide, Inc. (“EWI”);
“you” or “your” refers to the person or persons named as our customer, being the person or persons with whom we contract to provide Our Services. If two or more persons are named as account holders, "you" will be a reference to all persons named as joint account holders on the relevant account, severally as well as jointly; and
“Your Nominated Account” means the bank account notified by you to us into which we are to transfer any Purchase Currency to you.
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 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 If we make any change to Our Terms, we will do so by giving notice in writing to you in accordance with clause 14.6 and/or informing you of the change by telephone and/or by placing the revised version of Our Terms on Our Website.
2.3 These changes are to 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 we are required to make them do so 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 the English language which shall also be the language of each FX Contract. All communications between us shall be made in the English language.
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, you submit to the jurisdiction of the courts of New South Wales, Australia.
4. FINANCIAL MARKETS
4.1 No advice
We may provide you with publicly available market information or advice relating to the mechanics of a transaction, should you ask us to do so. However, we do not provide personal advice (for example, whether to proceed with, or not proceed with or in respect of the timing of any Trade, FX Option or Payment unless required by law). You should not treat any information we provide to you as personal advice, unless we expressly tell you that we are giving personal advice. That is, we do not take into account your personal or corporate situation, experience, financial objectives or circumstances.
Xe does not provide personalised advice to retail clients. Transactions for retail clients shall be conducted on an ‘execution only’ basis.
You represent and warrant that you have sought independent financial, legal and taxation advice as you consider appropriate prior to entering any a 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.
It is entirely up to your own skill and judgment to decide whether or not to make a Request and entirely for you to decide whether or not a Request, a particular Trade or FX Option, and your instructions to us, are suitable for you, your circumstances and your purposes.
In making your decision to enter into a 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 Product Disclosure Statement.
You should be aware that 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.
4.3 Bank delays and errors
We accept no responsibility for, and will have no liability in respect of, any 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).
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 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, the 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. Without limitation, 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 7.5 below. 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 below Clause 6.11.7.
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 request by you, we may at our absolute discretion 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 immediately notify us 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. Each FX Contract incorporates Our Terms (as amended by us in writing from time to time).
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.
6. YOUR RESPONSIBILITY TO US
6.1 Account Registration
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 the 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 and onboarding process.
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.
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
You must promptly supply us with all 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.
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 6.2 may involve a transfer to or from outside Australia.
We will handle any information or documentation provided by you in accordance with Clauses 13 ("Confidentiality") and 14 ("Your Information") of Our Terms.
You undertake that you:
(a) are not aware 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;
(b) will not knowingly put us in breach of any laws or regulations in Australia or any other country, including the AML and CTF Laws; and
(c) will immediately notify us if you become aware of anything that may result in such a breach.
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 or incurring any liability. 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 Payment Purposes
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 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.
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 US Sanction Laws.
6.4 Security Information
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.
You agree that:
(a) 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;
(b) 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;
(c) 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;
(d) 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; and
(e) 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.
6.5 Information provided to Us
You are solely responsible for ensuring the completeness and accuracy of all information you provide to us at any time, 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.
If we act in accordance with you instructions and send your funds to an incorrect Beneficiary Account as a result of an error made by you, we will be under no obligation either to recover the funds or to resend the funds to the correct Beneficiary Account.
However, if we send your funds to the incorrect Beneficiary Account as a result of an error made by us, we will undertake urgent reasonable action at our own expense to attempt to recover the misdirected funds. In this event, you must take immediate action to assist us in recovering the funds if the mistaken Beneficiary Account is in any way associated with you.
You must always provide us with instructions, and make sure any Authorised Person provides us with instructions, in the English language.
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.
You must keep your contact information up to date at all times and be 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 clauses 8.2.4 and 8.2.5, failure to do so may form grounds for termination of a FX Contact by us.
You will also notify us immediately if you become aware of any error in connection with a FX Contract or if any of the circumstances listed in clause 8.2.11 (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 or not to provide you with Our Services or to continue to do so.
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 precure that Authorised person will also not do so. We have no responsibility 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.
If you are acting in a trustee, agent or partnership capacity with our prior approval, you agree to provide the additional warranties and representations in Schedule 2.
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.
6.7 Compliance with Local Laws
We are based in and operate our business out of New Zealand and in accordance with New Zealand and 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 New Zealand or 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.
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. Unless and until you have provided notice to us to the contrary, you acknowledge and agree that:
(a) 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;
(b) you shall ensure that the Authorised Person is aware of Our Terms and you will procure that such Authorised Person complies with Our Terms; and
(c) 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.
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.
6.9 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 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 14.6 of Our Terms, regardless of to whom of the joint account holders it is addressed.
6.10 Third Parties
A 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.
As set out in clause 6.6, 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.
6.11 Payment Obligations
6.11.1 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 the Our Nominated Account by no later than the time stipulated by us on the Business Day immediately preceding the Value Date.
6.11.2 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 the Our Nominated Account by no later than the time stipulated by us on the day of the Same Day Trade.
6.11.3 Forward Trades, Margin Payments & Additional Margins
The amount we require from you for a Forward Trade will be due to and must be paid to us:
(a) 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
(b) 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.
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.
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.
Payments made towards satisfying requests for Margin or Additional Margin are to be held in Our Nominated Account.
If you are an Australian retail client (being a client of ours that resides in Australia and who is not a Wholesale Client), we will hold on trust for you in a statutory pooled client trust bank account with a registered bank an amount equal to the aggregate Margin Payments paid by you and held by us. Those funds cease to be held on trust for you on settlement of the Trade.
You agree and acknowledge that:
(a) you have an obligation to pay an Additional Margin within the time specified by us;
(b) 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;
(c) we may require an Additional Margin to be paid immediately, for example if there are Volatile Market Conditions;
(d) time is of the essence in relation to you making a payment of an Additional Margin;
(e) 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;
(f) we may make requests for Additional Margins more frequently than daily and you must fully and punctually comply with such requests;
(g) if you fail to pay the Additional Margin the required time, then we may (without prejudice to any other rights or powers under Our Terms) in our absolute discretion immediately terminate by way of Close Out without notice, all or some of the your Trades, whether or not those Trades caused the need for the Additional Margin; and
(h) 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.
6.11.4 Swap Trade
If a Trade is a Swap Trade:
(a) clause 6.11.1 will apply to the Spot Trade component of the Swap Trade; and
(b) clause 6.11.3 will apply to the Forward Trade component of the Swap Trade.
6.11.5 FX Options
FX Options (including FX Structured Options) are only offered to Wholesale Clients.
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 wiring (at our sole discretion) and accepted by you.
Please see Schedule 1 for additional information regarding FX Options (including, Structured FX Options) offered by Xe NZ.
6.11.6 General Payment Obligations for all FX Contracts
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.
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 (approximately 2.5%) and our reasonable administrative fees. We may also be required by AML and CFT Laws to seek satisfactory information from you about the source of the funds before returning the funds to you.
No Set-Off, Counter-Claim or Conditional Payments
All payments by you under Our Terms are to be made without any set-off by you, counter claim or condition made by you and without you making any deduction or withholding for any tax or any other reason, unless the deduction or withholding is required by an applicable law or the set-off arises by express application of Our Terms.
Interest, Charges & Fees
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.
We may also charge a fee to you if you instruct us to make more than one onward payment on settlement of a Trade.
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.
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:
(a) by your bank and any intermediary or receiving banks from money paid by you to us; or
(b) 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.
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.
Transaction Thresholds & Limitations
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
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 Marginor Additional Margin) or FX Option will be beneficially owned by you and not subject to any mortgage, charge, lien or other encumbrance.
Source of Funds
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
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.
7. OUR RESPONSIBILITY TO YOU
7.1 We will:
7.1.1 provide Our Services at all times in accordance with Our Terms;
7.1.2 in relation to each Trade and FX Option:
(a) tell you what the Value Date will be;
(b) 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
(c) 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.
7.2 We will not be obliged to:
7.2.1 provide any of Our Services to you unless or until you have met the requirements of clauses 6.1 (Account Registration), 6.2 (Compliance with Legal Requirements, including AML and CTF Laws), 6.3 (Payment Purposes), 6.4 (Security Information), 6.5 (Information provided to Us), 6.6 (Capacity) and 6.7 (Compliance with Local Laws) of Our Terms;
7.2.2 provide any of Our Services to you if an event listed in clause 8.2 of Our Terms occurs;
7.2.3 provide a FX Option or perform a Trade until we are in receipt of cleared and settled funds from you;
7.2.4 accept any money to provide a FX Option or perform a Trade from any person other than you;
7.2.5 proceed with any Trade of FX Option having a value higher than any transaction limit which we may impose from time to time.
7.3 Settlement of liabilities and deductions
7.3.1 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.
7.3.2 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.
7.4 Protecting Your Funds
Client Trust Account
7.4.1 To the extent required by law, we will deposit and hold Derivatives Investor Money in a statutory Client Trust Account held with a Specified Bank. We will not hold any other funds paid to us in a statutory Client Trust Account, unless expressly stated in writing.
Withdrawal of Derivatives Investor Money
7.4.2 We will not use funds from the Client Trust Account to satisfy our debts or liabilities.
7.4.3 We will only withdraw funds from our Client Trust Account if it is to be:
(a) repaid to you;
(b) used in the settlement of a derivative with you;
(c) used to acquire a derivative (in accordance with your express instructions);
(d) used to pay brokerage or other fees and charges authorised by you; or
(e) paid to a third person (in accordance with your express instructions).
7.4.4 Once funds have been withdrawn from the Client Trust Account for the permitted purposes outlined above, the funds will cease to be held on trust.
Interest from Client Trust Account
7.4.5 You acknowledge and agree that we are entitled to any interest or earnings arising from the Client Trust Account.
7.4.6 In the unlikely event of insolvency, any Derivatives Investor Money held by us will be dealt with in accordance with the Regulations. It is important to note that the Client Trust Account will not provide your funds with absolute protection. Whilst your funds will be kept segregated from our own funds (subject to us depositing amounts to cover the risk of a shortfall from authorised hedging activities), they may be intermixed with other clients' money. This means that, in the event of insolvency and a deficit in the Client Trust Account, you may be exposed to a risk that you may not receive the entirety of the money held on trust for you.
7.4.7 If you are a Wholesale client, you acknowledge and agree that we are not required to hold any funds received by you in a Client Trust Account.
7.4.8 All funds received by us from you that are not Derivatives Investor Money (for example, funds received from Wholesale clients or 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:
(a) the purpose of meeting our obligations relating to exchange-traded derivatives, provided that we are satisfied that the recipient is a Hedge Counterparty; and
(b) 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.
7.5 Certain High Risk or Complex Jurisdictions
7.5.1 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.
7.5.2 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.
7.6 Our Website
7.6.1 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, those terms prevail over Our Terms to the extent of any inconsistency.
7.6.2 You acknowledge and agree that:
(a) 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;
(b) 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
(c) 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.
7.6.3 You also agree to:
(a) notify us immediately 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
make all reasonable attempts to verify whether a Request has been received, approved and effected prior to taking further action, if you are 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. You will be solely responsible and liable for any duplicate instruction that you place.
7.7 Market Orders
7.7.1 This clause 7.7 applies to any Market Order which you place with us through Our Website (“Online Market Order”), over the phone (individually and collectively, “Market Order”), and we agree to perform for you.
7.7.2 Without prejudice to clause 7.7.7 below (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 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.
7.7.3 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.
7.7.4 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, save to 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.
7.7.5 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.
7.7.6 Upon Acceptance (i.e. 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 we receive payment in cleared funds by the Value Date specified in the Contract Note.
7.7.7 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 but we make no guarantee that a Market Order will be filled (when such rate is reached or otherwise).
7.7.8 You acknowledge and agree that:
(a) we will in our sole discretion (acting reasonably and in good faith) determine whether a Target Rate has been reached and may disregard temporary movements in exchange rates;
(b) although you specified a Target Rate for a Market Order, market conditions may prevent the execution of a Market Order at that exchange rate;
(c) 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;
(d) 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
(e) you are legally bound by the Market Order once the Target Rate has been reached.
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.
8.1 Each Trade will expire automatically following full settlement of the Trade. FX Options and/or Structured FX Options will may be exercised in accordance with the terms set out in Schedule 1.
8.2 In addition to any other termination rights in Our Terms, we may terminate a FX Contract immediately (without notice):
8.2.1 where you fail to 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;
8.2.2 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 you are not contactable for a period of twenty-four (24) hours on Business Days in other circumstances;
8.2.3 where you do not provide us with instructions in writing, including (without limitation) all the details we require relating to Your Nominated Account or the Beneficiary Account;
8.2.4 where you have failed to comply in full with any reasonable information request made by us;
8.2.5 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;
8.2.6 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;
8.2.7 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;
8.2.8 where a serious dispute has arisen between us;
8.2.9 where you do something you agree not to do, or you fail to do something you agree to do, in connection with Our Terms or any FX Contract;
8.2.10 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;
8.2.11 in the event that you become unable to pay your debts as and when they fall due, you cease or threaten to cease any payment/s 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;
8.2.12 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 Insolvency Act 2006 (NZ);
8.2.13 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 Insolvency Act 2006 (NZ), or the partnership is dissolved for any reason;
8.2.14 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 (without limitation and by way of example only) 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;
8.2.15 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 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.
8.2.16 as provided for in clause 11.
8.3 Default Notification
If you become aware of the occurrence of any event referred to in clause 8.2 (other than clauses 8.2.2, 8.2.14 and 8.2.15), you must provide us with notice of such event immediately.
8.4 Your Termination Rights
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 limited. However, if the following events occur, you may terminate any FX Contract by providing us with written notice in accordance with clause 15.6:
(a) if we materially breach any of Our Terms or otherwise fail to comply with our obligations to you in respect of a FX Contract;
(b) if we are in breach of any statute or regulation relevant to the FX Contract;
(c) 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.
Upon you providing us with a notice of termination, we must immediately Close Out each relevant Trade and clause 8.6 will apply to that termination be way of Close Out.
The provisions of this clause 8 (Termination) and clauses 3 (Language and Applicable Law), 9 (Our Liability), 11 (Circumstances beyond our Control), 12 (Linking and Framing), 13 (Confidentiality), 14 (Your information) and 15 (General) shall survive the termination or expiry of Our Terms for any reason.
8.6 Consequences of Termination
8.6.1 Close Outs
If a FX Contract is terminated for any reason, we:
(a) will Close Out any Trade not yet completed, which you acknowledge may involve us entering into a Reversal Transaction;
(b) will notify you of the Close Out Cost that we will claim from you as a genuine pre-estimation of the cost to us of Close Out (and not as a penalty);
(c) will notify you of any Further Loss;
(d) 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;
(e) will return the balance of any sum which you have paid us that remains to you after settlement of all liabilities; and
(f) will not execute the Trade or Payment.
8.6.2 Payment of Loss
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.
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.
8.6.4 Netting Agreement
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 from us to you and from you to us on termination (together with any other payments due and payable but unpaid from us to you and from you to us 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.
8.6.5 The provisions of clauses 8.2 to 8.6.4 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. Our rights to recover such Loss or damage shall not be affected by termination or expiry of the FX Contract for any reason.
8.6.6 Costs and expenses of termination
You are liable to us for any costs or expenses we reasonably incur in connection with the exercise of our rights under this clause 8 (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.
8.6.7 No payment of profit
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.
9. OUR LIABILITY
9.1 Under no circumstances will we be liable to You or any Third Party for:
9.1.1 any Loss or damage (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 anything done or omitted to be done by us in good faith in the course of performing Our Services, which shall include where we refuse to enter into a FX Contract, 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 8.2;
(b) out of the failure or delay of any Third Party in the transmission, provision or delivery of Our Service;
(c) as a result of any fluctuation in any exchange rate, or other circumstance beyond our control (as set out in clause 10);
(d) as a result of any act or omission by you or any Authorised Person, which shall include where you do not provide us with any amount we require from you by the due date; or
9.1.2 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.
9.2 You will be liable to us for all losses which we suffer or incur relating to any fraud or fraudulent activity by you at any time.
9.3The limitation and exclusion of liability under this clause 9 is set on the basis that you are aware of the volatile nature of foreign exchange and are not participating in speculative activity.
9.4 Subject to clause 9.5, our total liability to you in connection with the performance, or contemplated performance, of Our Services, is limited to an amount not exceeding (in total) the 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.
9.5If by law, our liability cannot be excluded of 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:
(a) supplying Our Services again; or
(b) the payment of the cost of having Our Services supplied again.
9.6 Your Indemnity
You hereby fully indemnify us and shall keep us fully indemnified in respect of all and any liability (including any Loss) which we reasonably incur in the proper performance of Our Services and the enforcement of our rights under Our Terms, including (without limitation) all and any liability incurred by us as a result of, or in connection with:
(a) any default in payment by you of any sum owing under Our Terms when due;
(b) your 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;
(c) any act or omission by you or any Authorised Person;
(d) 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
(e) any termination of a FX Contract by us pursuant to clauses 8.2.1 to 8.2.15.
We are not liable under any FX Contract to any Third Party and are not liable for any Loss or damage whatsoever caused to any Third Party. 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.
9.7 Negligence or Fraud
No provision of this clause 9, nor any other provision of Our Terms, shall have as its object or effect the exclusion or limitation of any liability we may have for personal injury or death resulting from our negligence or for fraud or any other liability which is not possible for us to exclude or limit by law or regulation (taking into account, without limitation, any act, omission, and/or contributory negligence of you and subject to the limitations on our liability under the other terms of this clause 9).
10. 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 (without limitation) any industrial action, labour dispute, act of God, fire, flood or storm, war, riot, civil commotion, siege, security alert, act of terrorism or any resulting precautionary measures taken, act of vandalism, sabotage, virus, pandemic, malicious damage, 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, cut or failure of power, failure of equipment, systems or software or internet interconnectivity or the occurrence of any extraordinary fluctuation in any financial market that may materially adversely affect our ability to perform the Trade or FX Option or your ability to fund the Trade or FX Option. If any of these circumstances occur then we may suspend any FX Contract for the period during which they continue or, at our discretion and in order to protect both you and us, we may terminate any FX Contract.
11. 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.
12.2 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.
12.3 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.
12.4 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.
12.5 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.
13. YOUR INFORMATION
Phone: 1800 875 483 or +61 2 8270 4500; or
Post: PO Box 7646, Wellesley Street, Auckland, New Zealand
A summary of how we collect and use your information can also be found on Our Website.
13.3 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.
13.4 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.
13.5 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.
13.6 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.
14.1 Third Party Rights
A 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.
As set out in clause 6.6, 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.
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.
14.3 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 New Zealand 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.
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.
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 Contract(s).
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.
14.5 Dispute Resolution
14.5.1 Internal Complaints Procedure
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.
You should seek to have your complaint resolved by us in the following manner prior to commencing any external complaints procedure.
In accordance with our complaints procedure, you should contact your Xe NZ representative and discuss your concerns. If your complaint is not satisfactorily resolved, you should contact our Complaints Manager. You may do this either by telephone, email or by letter in accordance with our Contact Details.
14.5.2 External Complaints Procedure
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.
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 Resolution Institute Mediation Rules 2016.
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 Resolution Institute Arbitration Rules 2020.
14.5.5 Legal Action
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.
14.6.1 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 the English language. Notices or demands may be given to, or served on a party as follows:
(a) Where it is to be given by you, it must be sent by:
Email: firstname.lastname@example.org; or
Post: PO Box 7646, Wellesley Street, Auckland, New Zealand
or to such other email or address in New Zealand which we tell you to use by notifying you in advance in writing in accordance with the provisions of this clause 14.6; and
(b) 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 New Zealand which you tell us to use by notifying us in advance in writing in accordance with the provisions of this clause 14.6.
14.6.2 Any notice or demand made under Our Terms will be deemed to be delivered as follows:
(a) If sent by domestic post, two (2) Business Days after it is posted;
(b) 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;
(c) 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
(d) If delivered by hand, at the time personally delivered.
14.7 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 14.8 below). This clause 14.7 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.
14.8.1 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.
14.8.2 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.
14.9 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.
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.
14.11 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.
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.
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.
You acknowledge and agree that you have been provided with, and have had the opportunity to read, our Product Disclosure Statement and our Financial Services Guide.
14.14 Consumer Guarantees
You warrant and acknowledge that if Our Services are acquired by you for commercial purposes, then nothing in Schedule 2 of the Competition and Consumer Act 2010 (Cth) ("Australian Consumer Law") will apply to Our Services or any FX Contract. .
14.15 Statutory Obligations
Nothing in these Terms affects our obligations as a Registered Financial Service Provider, Financial Advice Provider Licensee, Derivatives Issuer Licensee and Australian Financial Services Licensee.
Schedule 1 – FX Options
In this Schedule 1, the following words have the following meanings:
“Exercise” means the process whereby you give notice to us on the Expiration Date that the FX Option’s underlying Trade is required and the consequent creation of the appropriate Trade as provided in clause 6 of these FX Option Terms;
"Expiration Date" means the day on which you may elect to Exercise the FX Option always providing that such Exercise is effective only if completed before the Expiration Time;
"Expiration Time" means the time on the Expiration Date at which all rights granted under the FX Option irrevocably cease and expire (time being of the essence);
"FX Guaranteed Rate" means the fixed currency exchange rate between the amounts of the Sale Currency and the Purchase Currency, agreed at the time the FX Option is issued or is confirmed;
"FX Option" means an agreement by which you have the right but not the obligation to enter into a Trade with us as specified in the Contract Note;
"FX Option Terms" means these Terms in this Schedule 1 for FX Options, as amended from time to time;
"In-The-Money" means to the value of your FX Option being worth more than had you undertaken the transaction at the current prevailing exchange rates;
“Out-of-the-Money” means to the value of your FX Option being worth less than had you undertaken the transaction at the current prevailing exchange rates;
"Premium" means the consideration payable to us by you for the rights provided by the FX Options;
"Premium Payment Date" means the Value Date by which the full amount of the Premium must be paid in cleared funds by you to Our Nominated Account.
“Structured FX Option” means a Call Option or a Put Option in respect of an agreement to exchange a specified amount of one currency for another currency at the current prevailing exchange rates set out in the structure as specified in the Contract Note;
“Put Option” means a contract that gives you the right, but not the obligation, to sell a specified amount of currency on the terms set out in the Contract Note (or as otherwise agreed in writing by us) and that forms part of a Structured FX Option;
“Call Option” means a contract that gives you the right, but not the obligation, to buy a specified amount of currency on the terms set out in the Contract Note (or as otherwise agreed in writing by us) and that forms part of a Structured FX Option;
"Margin Payment Date" means the date by which the full amount of the Margin and/or Additional Margin must be paid in cleared funds by you to Our Nominated Account.
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.
(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
The Contract Note of a FX Option will include the following (as applicable):
(a) quotation/confirmation date and time of transaction;
(b) the currency and amount sold to Xe NZ (Sale Currency);
(c) the currency and amount bought from Xe NZ (Purchase Currency);
(d) FX Option product type or description, for example (but not limited to):
(ii) Participating Forward;
(iii) Knock-in Forward;
(e) Expiration Date;
(f) Expiration Time;
(g) Settlement date;
(h) FX Protection Rate (if applicable);
(i) Participation Rate (if applicable);
(j) Knock-In Rate (if applicable);
(k) FX Guaranteed Rate;
(l) Premium payable/due (if applicable); and
(m) Premium Payment Date (if applicable).
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 clause 8.6.3 of 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 these 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
(f) 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.
(g) 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.
(h) 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.
(i) You 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.
(j) 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 8.6 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 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 clause 6.3, we do not permit the use of Our Services (including FX Options) for investment or speculative purposes.
(a) You acknowledge and agree that, by entering into any FX Options transaction with us, you have been properly classified as a ‘Wholesale’ customer (which will be confirmed to you by us). You must provide us with information relating to your current ‘Wholesale’ 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 New Zealand;
(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 of a fund ("Fund"):
(a) You undertake that you must not retire as responsible entity 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 requires 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 affect 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 the 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 New Zealand;
(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"); have been or are to be implemented in accordance with an written investment strategy undertaken in accordance with the SIS Act;
(ii) 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
(iii) 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 the 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.
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.