- The service
- Warranties, acknowledgements and undertakings
- On-line services
- Financial provisions
- Spot and same day FX transactions
- Forward FX transactions
- Predelivery and rollovers
- Market orders
- Security arrangements
- Termination and set-off
- Limitation of liability
- Anti-money laundering
- Governing law
- Authorised persons
- Schedule 1: On-line services
- Schedule 2: FX Options
- Schedule 3: Trustee additional representations, warranties and undertakings
The service provided by HiFX to the Client (under either the “HiFX”, “Currency Online” or “Xe” brands) is provided on the following terms (Terms).
1. THE SERVICE
1.1 FX Transactions are requested, agreed, issued and managed on the terms set out in this agreement.
1.2 These Terms also cover the Account which the Client must have to manage its FX Transactions. Even if the Terms describe something in relation to the Account, they are terms which apply to the FX Transactions.
2.1 To establish the Account, the Client must complete an Application Form and that must be accepted by HiFX. HiFX may, in its absolute discretion, accept or decline an Application Form.
2.2 This agreement will apply to the Client from the time HiFX accepts the Application Form.
2.3 The Application Form may be in paper form or in electronic form, as HiFX permits from time to time.
2.4 The Client will need to submit additional Application Forms to access different kinds of FX Transactions that may be subsequently offered by HiFX.
2.5 All FX Transactions offered by HiFX are subject to the Terms in this agreement, which includes those Schedules which apply to particular FX Transactions used by the Client from time to time (as specified in those Schedules). A reference to “Terms” is a reference to the Terms in this agreement (including the specific Schedules relevant to particular FX Transactions) which are applicable to the Client, as amended from time to time.
2.6 If, after opening an Account, the Client later chooses a different kind of FX Transaction being offered by HiFX for which the Client has not previously dealt with HiFX then the relevant Schedule (in the form applying at that time, and as later amended) for those FX Transactions will apply to the Account when HiFX agrees to provide the FX Transactions by accepting the additional Application Form.
3. WARRANTIES, ACKNOWLEDGEMENTS AND UNDERTAKINGS
3.1 The Client warrants that:
(a) The Client is acting as principal only and not as agent for (or otherwise on behalf of) any third party whose identity has not been disclosed in writing to HiFX prior to applying for the Account.
(b) If the Client is acting as trustee or as agent, it gives the additional warranties and representations in Schedule 3.
(c) A FX Transaction cannot be altered or cancelled without the prior written consent of HiFX from the time of its written, electronic or oral acceptance.
3.2 The Client undertakes that:
(a) All FX Transactions will be for non-speculative purposes only and that the Client will have full capacity to instruct HiFX to perform the Service and to place an Order and to enter into FX Transactions.
(b) The Client will take physical delivery on the Value Date of the Bought Currency after payment to HiFX of the full amount of the Sold Currency for each FX Transaction as stipulated by HiFX.
3.3 In relation to any FX Transaction and information or advice supplied by HiFX:
(a) The Client warrants that the Client relies solely on the Client’s own skill and judgment in determining whether the FX Transaction or Services acquired from HiFX are suitable and reasonably fit for the Client’s purposes.
(b) The Client acknowledges that HiFX does not give any personal advice to the Client and HIFX has not taken into account the personal situation of the Client or the Client’s experience, financial objectives, needs or circumstances unless HiFX expressly tells the Client it is giving personal advice.
(c) The Client warrants that the Client does not place any reliance on HiFX’s opinion of the merits or otherwise of any FX Transaction, taxation matters in relation to that or matters concerning any foreign exchange financial products or markets or other matters of whatever kind.
(d) The Client acknowledges that HiFX recommends that the Client seeks prior independent financial and legal advice and consider carefully whether entering into specific foreign exchange transactions are appropriate in terms of the Client’s experience, financial objectives, needs and circumstances.
3.4 If any payment requested by the Client to be made by HiFX is:
(a) in United States dollars;
(b) to be cleared in the United States; or
(c) to be made via a bank in the United States,
then the Client shall, in respect of such payment, be deemed to have warranted, declared and undertaken to HiFX at the time of the relevant payment request that the beneficiary of the payment is not a person, group or entity, or associated with a country, sanctioned by United States laws and regulations, including (without limitation) those administered by the Office of Foreign Assets Control of the United States Department of Treasury.
3.5 Each warranty and acknowledgement by the Client is deemed to be repeated prior to each Order and on each day that a FX Transaction exists.
4.1 The Client may make an Order:
(a) by the On-line Services; or
(b) over the telephone; or
(c) by email from the Client’s designated email address.
4.2 HiFX is not obliged to perform the Service and may refuse to do so without giving any reason. HiFX will have no liability to the Client for any resultant loss to perform the Service.
4.3 Each instruction from a Client constitutes an offer to HiFX and, if accepted by HiFX, will result in an agreement for the relevant FX Transaction on these Terms.
4.4 A FX Transaction will come into force when HiFX accepts the Client’s Order or, in respect of a FX Transaction made using the On-line Service, when HiFX accepts the Client’s offer made when using the On-line Services system (see Schedule 1 paragraph 7).
4.5 If a FX Transaction has been entered into, HiFX will confirm the details by emailing to the Client a Confirmation of the FX Transaction. The failure of HiFX to do so will not prejudice the rights or obligations of either party under such agreement.
4.6 Notification or errors and omissions: The Client agrees to check each Confirmation within 24 hours of HiFX sending the Confirmation and immediately notify HiFX of any errors or omission in the Confirmation. Unless the Client notifies HiFX of any error or omission within 24 hours, the Client will be deemed to have ratified and accepted the contents of such Confirmation. After that time, the Client will not be entitled to dispute the contents of the Confirmation and it will (except where HiFX accepts there is manifest error in the FX Transaction details and these could not reasonably have been identified by the Client from the contents of the Confirmation) be conclusive evidence of the matters stated in it and of the agreement and instructions of the Client in respect of the relevant FX Transaction and/or onward payment.
4.7 Notwithstanding clause 4.1, HiFX may require written confirmation of any Order or instruction by the Client prior to accepting the Order or instruction.
4.8 HiFX may record and store recordings of all telephone conversations with the Client (and its Authorised Persons), with or without an automatic warning message or tone. HiFX may produce and store a transcript of the recorded telephone conversation and to use either the transcript or the recording of the telephone conversation for the purposes of verifying the details of an Order or FX Transaction or to resolve any disputes between the Client and HiFX in respect of the FX Transaction or Service.
5. ON-LINE SERVICES
5.1 If you use our on-line service, the additional terms set out in Schedule 1 will apply.
6. FINANCIAL PROVISIONS
6.1 The Client must immediately make all payments due to HiFX pursuant to these Terms in full without any set-off, counterclaim or deduction whatever.
6.2 Time is of the essence in relation to the performance of the Client’s payment obligations under these Terms.
6.3 HiFX may make any deductions it is required by law to deduct or is permitted to make under these Terms.
6.4 HiFX accepts no responsibility for and will have no liability in respect of any delay or withholding of payment by a bank. The parties acknowledge that the banks through which payment of the FX Transaction is to be effected have specified times of cut off for the receipt and despatch of electronic payments. Delays in onward payment may be attributable to the late arrival of payment relative to the cut off times of the designated bank, their errors or omissions or their failure to conduct the payments. A bank may also be required to (amongst other things) delay or withhold payment if it is not satisfied with information about the Client, payment or recipient for the purposes of AML/CTF Laws or other laws).
6.5 Bank charges: The Client acknowledges that bank charges and fees may be deducted from payments to or from HiFX by third party banks in the following circumstances:
(a) by the Client’s bank and any intermediary or receiving banks from money paid by the Client to HiFX; or
(b) by intermediary and receiving banks from Bought Currency transferred internationally by HiFX on behalf of the Client
and those charges and fees are to the Client’s account.
6.6 No onward payments will be made by HiFX until funds received by HiFX have cleared.
6.7 HiFX may charge the Client interest for the late payment of any sum due under these Terms or any agreement at the rate of five percent per annum above HiFX’s principal bank’s base lending rate from time to time from and including the due date until payment is received in cleared funds. This rate is available from HiFX on request.
6.8 FX Transaction below Transfer Threshold: HiFX will charge the Client a Transfer Fee if the Sold Currency amount falls within a Transfer Threshold. HiFX may vary both the amount of the Transfer Fee and the applicable Transfer Threshold from time to time. The Transfer Fee and the Transfer Threshold are available on HiFX’s website.
6.9 Multiple payments: HiFX may charge a fee to the Client if the Client instructs HiFX to make more than one onward payment on settlement of a FX Transaction.
7. SPOT AND SAME DAY FX TRANSACTIONS
7.1 Spot FX Transactions: If the FX Transaction is a Spot FX Transaction, the Client must pay into the Security Trust Account on such date or dates as HiFX directs, but no later than the Business Day immediately preceding the Value Date, the full amount of the Sold Currency in cleared funds as full payment for the FX Transaction.
7.2 Same Day FX Transaction: If the FX Transaction is a Same Day FX Transaction, the Client must pay the full amount of the Sold Currency into the Security Trust Account in cleared funds by no later than the time stipulated by HiFX on the day of the Same Day FX Transaction.
8. FORWARD FX TRANSACTIONS
8.1 Forward FX Transactions and Margin:
(a) If the FX Transaction is a Forward FX Transaction, the Client must immediately after HiFX agrees to the FX Transaction:
(i) pay a Margin, as specified by HiFX (a percentage of the Sold Currency or as otherwise agreed), into the Security Trust Account in cleared funds; and
(ii) pay any outstanding balance of the Sold Currency into the Security Trust Account in cleared funds by the time nominated by HiFX and in any case not later than one Business Day before the Value Date of the particular Forward FX Transaction, unless specifically agreed by HiFX.
(b) After a Forward FX Transaction is established, HiFX may make a Margin Call, as determined by HiFX in its absolute discretion, to re-establish the Margin to an amount acceptable to HiFX. Margin Calls may be payable immediately if required by HiFX.
The Client agrees to and acknowledges each of the following:
(a) A Margin payment is the amount paid by the Client to HiFX for part payment of the Sold Currency and on payment to HiFX that amount will be credited to the Client’s Account as Margin.
(b) The Client has an obligation to satisfy a Margin Call within the required time. The minimum amount of the Margin Call may be determined by HiFX in its absolute discretion. The payments to be made towards satisfying a Margin Call must be made to the Security Trust Account.
(c) Margin Calls may be made by any means of notice permitted by these Terms, including by telephone call or email to the Client or the Authorised Person. It is fundamental that the Client remains contactable by HiFX during Business Days using the contact details given to HiFX from time to time. The Client’s failure to be contactable or to receive notice of a Margin Call at any contact address does not affect the validity of the Margin Call or the Client’s obligation to satisfy it.
(d) If no other time is stipulated by HiFX in its Margin Call for satisfying the Margin Call then the Client must comply within 24 hours of the Margin Call being made.
(e) The Client acknowledges that Margin Calls may be payable immediately if required by HiFX.
(f) If the Client fails to satisfy the Margin Call by the required time, then HiFX may (without prejudice to any other rights or powers under these Terms) in its absolute discretion, and without creating an obligation to do so immediately terminate by way of Close Out without notice, all or some of the FX Transactions, whether or not those FX Transactions caused the need for a Margin Call.
(g) The time for the Client’s payment to satisfy any Margin Call is of the essence of this agreement.
(h) The Client’s obligation to satisfy Margin Calls arises at the time the FX Transaction is executed irrespective of the time any later Margin Call is made.
(i) It is solely the Client’s responsibility to satisfy all Margin Call obligations.
(j) A Margin payment is credited by HiFX at the time cleared funds have been received and credited to the Security Trust Account by HIFX.
8.3 HiFX may make Margin Calls more frequently than daily and the Client must fully and punctually comply with such calls.
8.4 Any amount of Margin or other net positive amount credited to the Account will not constitute a debt due by HiFX to the Client.
8.5 The Client’s liability in respect of Margin requirements is not limited to the amount, if any, initially paid to HiFX for the Client’s Account. The Client is responsible to pay any deficit owing to HiFX after termination of a FX Transaction and if the Client defaults in payment of such deficit, HiFX may apply the deficit to the Account or realise any FX Transactions held by HiFX and apply the proceeds against that deficit and the Client is responsible for the full and prompt discharge of the deficit (which exceeds the value of the Account) by making payment in full to HiFX immediately that deficit arises.
9. PREDELIVERY AND ROLLOVERS
The Client acknowledges that in respect of FX Transactions, if the Client requests:
(a) delivery earlier than the Value Date, HiFX may in its discretion agree to that and on the basis of an adjusted exchange rate or other variations;
(b) termination of the FX Transaction on a date that is earlier than the Value Date, HiFX may in its absolute discretion agree to that and that may result in an adjustment to the amount payable on termination of the FX Transaction; or
(c) an extension to a date later than the Value Date, HiFX may in its absolute discretion agree to that and HiFX may either adjust the current FX Transaction for a new exchange rate or HiFX may Close Out the existing FX Transaction at the existing exchange rate and enter into a new FX Transaction on agreed terms appropriate to the extension.
10. MARKET ORDERS
10.1 Client Request for Market Order:
The Client may make a Market Order in the manner set out in clause 4.1. Clauses 4.2 and 4.3 will not apply to Market Orders. 10.2 Target Rate and cancellation:
For each Market Order:
(a) on the Target Rate being reached, HiFX will enter into a Spot FX Transaction or Forward FX Transaction (as applicable) with the Client on the terms of the Market Order and this clause 10 without any further action being required of the Client. HiFX will confirm entry into the FX Transaction by emailing to the Client a Confirmation of the FX Transaction.
(b) The Client may cancel or alter a Market Order using the On-line Service or by telephone during business hours of HiFX at any time before the Target Rate is reached.
(c) HiFX will use its best endeavours to fill the Market Order but makes no guarantee that a Market Order will be filled on the Target Rate being reached.
10.3 Stop loss Market Orders: HiFX will execute each stop loss Market Order at the first available price at which HiFX is able to transact with its bank counterparties after the Target Rate has been reached.
10.4 Client acknowledgements: The Client acknowledges and agrees that:
(a) although the Client specifies an exchange rate for a Market Order, market conditions may prevent the execution of an individual Market Order at that exchange rate;
(b) HiFX will in its sole discretion determine whether a Target Rate has been reached and may disregard temporary movements in exchange rates;
(c) as a result of supply and demand factors in a volatile market, a Spot FX Transaction or a Forward FX Transaction entered into on execution of a stop loss Market Order may be significantly and adversely above or below the rate nominated by the Client; and
(d) each Market Order constitutes a continuing offer to HiFX that HiFX may accept at any time until cancelled by the Client or the expiry date for the Market Order (if applicable).
11. SECURITY ARRANGEMENTS
11.1 All funds into Security Trust Accounts
All funds received by HiFX from its clients and Hedge Counterparties or which are paid by HiFX to its clients and Hedge Counterparties (including Sold Currency, Bought Currency and Margin) must be received into and paid out of, a Security Trust Account.
11.2 Use of funds in Security Trust Accounts
HiFX may use funds from a Security Trust Account from time to time in the ordinary
course of its business but only for one or more of the following purposes:
(a) to meet its obligations for the settlement of transactions with its clients in accordance with the applicable Terms;
(b) to meet its obligations owed to its Hedge Counterparties in respect of Hedge Contracts, including in respect of payments by way of absolute transfer of funds or by way of security or collateral as support for HiFX's obligations under its Hedge Contracts;
(c) to pay bank charges, government taxes or levies on or in respect of that Security Trust Account or as reasonably allocated to that Security Trust Account;
(d) to withdraw any interest credited to the Security Trust Account; or
(e) to pay itself or otherwise to appropriate for its own uses amounts surplus to the amounts actually or contingently needed or reasonably likely to be needed to meet all of its obligations on all foreign exchange transactions with its clients and to meet all of its obligations on all Hedge Contracts, in either case as at the time of that withdrawal;
but in all cases always subject to the terms of the Security and the Trust Deed.
11.3 Security in favour of clients
HiFX confirms that it has granted for the benefit of each of its Clients with a foreign exchange transaction that has not terminated, a registered first ranking security (Security) over (in summary):
(a) the Security Trust Accounts; and
(b) HiFX’s rights under its Hedge Contracts, including in respect of payments by way of absolute transfer of funds or by way of security or collateral as support for HiFX's obligations under its Hedge Contracts
11.4 Independent Trustee
HiFX confirms it has appointed an independent trustee (Trustee) under the Trust Deed, who is the registered holder of the Security and holds the Security for the benefit of the Client and each other client of HiFX on the terms set out in the Trust Deed and the Trust Deed has not been revoked.
11.5 Trustee’s powers on behalf of Client
HiFX confirms that, under the terms of the Trust Deed, the Trustee is empowered to
act on behalf of, and for the benefit of, the Client upon HiFX’s insolvency.
11.6 Client right to copy of Trust Deed
The Client acknowledges that it has had a reasonable opportunity to read and to obtain a copy of the Trust Deed (available free of charge on request from HiFX).
12. TERMINATION AND SET-OFF
12.1 HiFX may terminate (without notice to the Client), by way of Close Out, but will not be obliged to terminate or to attempt to terminate, some or all FX Transactions and/or other contracts between the Client and HiFX, at that time or any later time as HiFX determines if any of the following occur:
(a) the Client fails to make a Margin payment by the due date and time, which may be immediately after the Margin Call is made;
(b) the Client fails to comply with a Margin Call within the applicable time period;
(c) at any time, and from time to time, HiFX determines in its absolute discretion that the value of all of the Client’s FX Transactions (and not taking into account any cash balance in the Account) represents a substantial net unrealised loss to the Client such that, in HiFX’s belief, the continued transacting, or failure to terminate, one or more of the Client’s FX Transactions will or is likely to materially prejudice the Client or the Client’s capacity to perform the FX Transactions;
(d) HiFX determines that any information provided by the Client to HiFX is false, misleading or inaccurate in any material respect;
(e) the Client breaches any of these Terms or otherwise fails to comply with the Client’s obligations to HiFX or HiFX in its absolute discretion determines there to be a material risk of the Client being unable to comply with its obligations to HiFX as and when they fall due;
(f) the Client is in breach of any statute or regulation relevant to the FX Transaction;
(g) it becomes or may become unlawful for HiFX to maintain or give effect to all or any of the obligations under these Terms, or if HIFX is requested to Close Out a FX Transaction (or any part of it) by any court or regulatory authority whether or not the request is legally binding;
(h) the Client becomes unable to pay the Client’s debts as they become due or makes any assignment, arrangement or composition with or for the benefit of the Client’s creditors or if the Client ceases or threatens to cease to carry on all or a part of his or her business or commits an “act of bankruptcy” (as defined in the Bankruptcy Act 1966 (Commonwealth of Australia)), becomes insolvent, has a bankruptcy petition issued against him or her or stops or threatens to stop any payment or payments due under these Terms or any agreement;
(i) if the Client is a natural person, the Client dies or becomes of unsound mind; or
(j) HiFX in its absolute discretion considers termination of one or more FX Transactions is necessary or desirable for its own protection, including (without limitation and by way of example only) when Volatile Market Conditions exist and the Client is not contactable for a period of 24 hours.
12.2 HiFX must promptly give to the Client notice of the termination after exercising its termination rights under clause 12.1.
12.3 If the Client becomes aware of the occurrence of any event referred to in clause 12.1 (other than paragraphs i or j in clause 12.1), the Client must give HiFX notice of such event immediately.
12.4 The Client may terminate with immediate effect any FX Transaction on written notice to HiFX if any of the following events occur:
(a) HiFX breaches any of these Terms or otherwise fails to comply with HiFX’s obligations to the Client in respect of an FX Transaction.
(b) HiFX is in breach of any statute or regulation relevant to the FX Transaction.
(c) HiFX becomes unable to pay its debts as they become due or makes any HiFX becomes unable to pay its debts as they become due or makes any assignment, arrangement or composition with or for the benefit of its creditors or it becomes insolvent.
On HiFX receiving the Client’s notice of termination in accordance with this clause, HiFX must immediately Close Out each relevant FX Transaction and clauses 12.5, 12.7, 12.8 and 12.9 apply to that termination by Close Out. (The FX Transactions cannot be terminated by the Client except by the FX Transactions being Closed Out.)
12.5 If one or more FX Transactions are terminated by any party under these Terms, HiFX may elect to set-off the payments due and payable but unpaid from HiFX to the Client and from the Client to HiFX on termination (together with any other payments due and payable but unpaid from HiFX to the Client and from the Client to HiFX in respect of any other FX Transaction or otherwise) so that one netted balance is calculated by HiFX and notified to the Client as soon as reasonably practicable after termination. The obligations of the Client and HiFX 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.
12.6 The Client is liable to HiFX for any costs and expenses HiFX reasonably incurs in connection with the exercise of its rights under this clause (including legal costs on a solicitor and own client basis), together with interest on those costs and expenses at the rate of five percent per annum above HiFX’s bank’s base lending rate at the time the costs and expenses are incurred. The Client authorises HiFX to deduct the amount of such costs, expenses and interest from the Account or to withdraw that amount from any funds held to the account of the Client.
12.7 The Close Out amount payable by the Client or HiFX (as applicable) in relation to each FX Transaction terminated in accordance with clause 12.1 will be the net amount after setting off each amount due from each party to the other so only the balance will be payable (Set-off Amount).
12.8 HiFX and the Client agree that the Set-off Amount is a reasonable pre-estimate of loss and not a penalty. HiFX will notify the Client of the Set-off Amount for each terminated FX Transaction as soon as practicable after termination. The Set-off Amount will be payable by the Client or HiFX (as applicable) on the date notice of the Set-off Amount is given to the Client.
12.9 The Client agrees that HiFX may set off any money due and payable by the Client to HiFX under any agreement or FX Transaction or otherwise against any money of the Client held by HiFX (on account of Margin or otherwise) or any money payable by HiFX to the Client. The Client authorises HiFX to deduct the amount set-off from the Account or the amount of any funds held to the account of the Client. This clause will not limit any right of set-off, combination of accounts, or rights of retention or withholding that HiFX has at law or in equity.
13. LIMITATION OF LIABILITY
13.1 This clause sets out HiFX’s entire liability to the Client for any losses, costs (including legal costs and expenses), damages, expenses, taxes, charges or any other liability whatever (Claim).
13.2 HiFX will not be liable to the Client for any Claim which arises as a result of currency fluctuation between the entry into a FX Transaction and the Value Date or as a result of the Client’s non-compliance with any FX Transaction.
13.3 Subject to clause 13.7, notwithstanding anything in these Terms or in any other agreement, to the extent permitted by law HiFX will not be liable to the Client for any Claim arising out of these Terms, the Service, or any FX Transaction by reason of any cause of action whether in contract, tort or otherwise, save except to the extent of losses caused by the negligence or breach of HiFX in the performance of a FX Transaction.
13.4 Subject to clause 13.7, notwithstanding anything in these Terms or in any other agreement, to the extent permitted by HiFX will not be liable in any circumstances for:
(a) any loss of profits, economic changes, good will, anticipated savings, loss caused by the failure or delay of any third party in the transmission, provision or delivery of the Service, or any special, indirect, incidental or consequential loss whether resulting from currency speculation, from purposes associated with the Client’s personal business or from any other cause whatever, regardless of legal basis or form of action (including loss or damage suffered by the Client as a result of action brought by a third party) and even if such loss was reasonably foreseeable or HiFX was advised as to the possibility of that; and
(b) an amount exceeding (in total) the amount of money actually received by law HiFX from the Client in respect of the particular FX Transaction, payment or other matter or circumstance giving rise to the Claim.
13.5 The Client forever indemnifies HiFX against any and all liabilities, costs and expenses (including legal costs on a solicitor and own client basis) incurred by HiFX in the proper performance of the Services and the enforcement of its rights under the Terms and, in particular, without prejudice to the generality of the foregoing, in respect of all amounts necessary to compensate HiFX for any and all liabilities, costs and expenses sustained or incurred by HiFX (including but not limited to HiFX’s loss of profits) as a result of or in connection with:
(a) any default in payment by the Client of any sum under these Terms when due;
(b) any breach by the Client of these Terms or any agreement;
(c) any action or steps of whatever nature or kind taken by HiFX to carry out or give effect to instructions or Orders, received from or purporting to be from the Authorised Persons referred to in clause 17; and
(d) HiFX exercising its rights under clause 6.
13.6 Subject to clause 13.7, notwithstanding anything in these Terms or in any other agreement, to the extent permitted by law HiFX will not be liable to the Client for any delay or non-performance of its obligations under these Terms or any agreement arising from any unusual and unforeseeable cause or causes beyond its reasonable control which could not have been avoided by HiFX even if all due care had been exercised including, without limitation, any Act of God, governmental act, war, fire, flood, explosion, civil commotion, failure of computer equipment or communications systems or industrial dispute as a result of which it is impractical, impossible or illegal for HiFX to comply with any of its obligations under these Terms or any other agreement.
13.7 If by law the liability of HiFX cannot be excluded or limited as provided in those Terms, then the exclusion or limitation is to be deemed to be varied so as to limit the liability of HiFX to:
(a) supplying the Services again; or
(b) the payment of the cost of having the Services supplied again.
13.8 If GST is payable on a taxable supply made by HiFX under, by reference to, or in connection with these Terms, the Client must also pay the amount of GST payable in respect of that taxable supply. This clause does not apply to the extent that consideration for a supply is expressly stated to the Client to be GST inclusive. Terms which have a defined meaning in the A New Tax System (Goods and Services Tax) Act 1999 have that meaning in these Terms.
13.9 The Client acknowledges that the Client is responsible for the Client’s own legal costs associated with entering into these Terms and for all Taxes and expenses incurred by the Client in connection with these Terms, including any Transaction made under it.
13.10 All payments by the Client under these Terms are to be made without any set-off by the Client, counter claim or condition made by the Client and without the Client making any deduction or withholding for any Tax or any other reason unless the deduction or withholding is required by applicable law or the set-off arises by express application of the Terms.
(a) the Client is required to make a deduction or withholding in respect of Tax from any payment to be made; or
(b)HiFX is required to pay any Tax (other than income tax) in respect of any payment made in relation to these Terms at the Client’s request,
then the Client:
(a) indemnifies HiFX against the Tax; and
(b)agrees to pay to HiFX an additional amount to ensure HiFX receives a net amount (after payment of any Tax in respect of each additional amount) that is equal to the full amount HiFX would have received had a deduction or withholding or payment of Tax not been made.
13.12 A Client may be comprised of two or more persons. If the Client is comprised of more than one person then the Account will be deemed to be held by the persons as joint tenants despite any actual or constructive notice to HiFX of any partnership or other agreement between the persons. The joint holding will be only be deemed not to be held as joint tenants if HiFX expressly agrees that in writing that the persons consisting of the Client hold the Account as tenants in common in equal shares or by a court determination of that it is not held as joint tenants.
13.13 If more than one person is named as the Client the obligations of the Client under this agreement will bind each of them jointly and severally.
14.1 Nothing in these Terms affects HiFX’s obligations as an Australian financial services licensee.
14.2 HiFX is an independent contractor in providing the Services to the Client. HiFX does not owe the Client any duty to offer the Client the best possible price or terms in the Client’s favour nor is HiFX required to act in the Client’s best interests. HiFX will honour any pricing commitment it may make from time to time. These Terms and any FX Transaction do not establish any relationship of partnership, joint venture, employment, franchise or agency between the Client and HiFX nor impose any fiduciary duty on HiFX to act in the Client’s interests.
14.3 HiFX has discretions under these Terms which can affect the Client’s Account and FX Transactions. The Client does not have any power to direct how HiFX exercises its discretions. When exercising HiFX’s discretions HiFX will comply with its legal obligations as the holder of an Australian Financial Services Licence. HiFX will have regard to (but not be bound by) its policies and have regard to managing all risks (including financial, credit and legal risks) for HiFX and all of HiFX’s clients, HiFX’s obligations to its counterparties, market conditions and HiFX’s reputation. HiFX will always try to act reasonably in exercising HiFX’s discretions but HiFX is not obliged to act in the Client’s best interests or to avoid or minimise a loss in the Account.
14.4 The termination of any FX Transaction or this agreement is without prejudice to any pre-existing liabilities or obligations of a party. The provisions of clause 13 will survive termination of any instruction by the Client, completion of any FX Transaction or termination of the Service or of any agreement.
14.5 These Terms set out all of the agreement between the Client and HiFX except only for those provisions which are imposed by law and which cannot or have not been excluded by these Terms. The terms of the Security Trust are governed by its terms.
14.6 These Terms and any agreements will constitute the entire agreement and understanding of the parties and supersede all oral communications and prior writing relating to them.
14.7 The Client may not assign or otherwise transfer the benefit of any agreement without the express written consent of HiFX. HiFX may without prior notice to the Client assign or novate its rights and obligations under these Terms to any third party and the Client consents to any such assignment or novation.
14.8 Any failure by either party to exercise, and any delay, forbearance or indulgence by either party in exercising, any right, power or remedy under these Terms will not operate as a waiver of that right, power or remedy or preclude its exercise at any subsequent time.
14.9 Notwithstanding that any provision of these Terms is determined by a court to be illegal or unenforceable pursuant to any statute or rule of law or for any other reason, that provision is deemed omitted without affecting the legality of the remaining provisions which will continue in full force and effect.
14.10 HiFX may amend these Terms from time to time by giving notice in writing to the Client in accordance with clause 14.11 or by informing the Client of the change by telephone or by posting details on HiFX’s website. The amendment is deemed to be accepted by the Client if the Client continues to use the Services. These changes will be effective and binding when issued. Any such amendment will not be retrospective or affect any rights or obligations that may already exist in respect of any then outstanding Orders or FX Transactions.
14.11 Each notice or demand under these Terms or any agreement is to be made in writing and sent by post, facsimile, electronic mail or personal delivery to the address or facsimile number advised by the relevant party from time to time. Any notice or demand given or made by HiFX under this agreement will be deemed to be delivered as follows:
(a) if sent by post, two 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 HiFX at the close of transmission or acknowledgement from the Client of the facsimile; and
(c) if sent by electronic mail, at the time sent by the sender to the recipient (provided that the sender to the recipient (provided that the sender has not received an undeliverable message); and
(d) if delivered by hand, at the time delivered.
14.12 The Client acknowledges and accepts that HiFX does not collect tax for any authority in any form or manner unless required by law. It is the sole obligation of the Client to calculate and pay all taxes applicable to the Client.
14.13 The Client will be solely responsible for ensuring that the details the Client supplies to HiFX to enable HiFX to perform the Service, including without limitation, the Client’s contact details, the details of any Order or FX Transaction and the Client’s onward payment instructions (inclusive of recipient name and physical address details), are true, accurate, complete and up to date. The Client will not withhold or omit any information that would render those details false or inaccurate. The Client agrees to notify HiFX immediately where the Client becomes aware of any error or change in the details the Client has supplied to HiFX.
14.14 The Client acknowledges and agrees that any disclosure statement or other document required to be given to the Client by law, including any product disclosure statement or financial services guide, may be given to the Client by being placed in either case on an identified website of HiFX or be sent by electronic means to the email address nominated by the Client in the Application Form or as subsequently nominated by the Client in writing.
15. ANTI-MONEY LAUNDERING
15.1 The Client acknowledges that:
(a) HiFX and its bank counterparties are subject to various AML/CTF Laws which may prohibit HIFX and/or its bank counterparties from offering services or entering into or conducting FX Transactions and payments either at all, or unless prescribed information is provided by the Client and/or verification checks undertaken; and
(b) the AML/CTF Laws include prohibitions against any person dealing with the proceeds of or assets used in criminal activity (wherever committed) and from dealing with any funds or assets of, or the provision of finance to, any person or entity involved (or suspected of involvement) in terrorism or any terrorist act.
15.2 The Client agrees that:
(a) HiFX is not required to take any action or perform any obligation under or in connection with these Terms and may delay, block or refuse to make any payment or to provide any service if is not satisfied as to the Client’s indentity or the information provided by the Client, or if HiFX is not satisfied that providing a Service or making a payment would be in compliance with AML/CTF Laws or any other applicable law; and
(b) HiFX will not incur any liability to the Client for any loss or damage the Client suffers (including consequential loss) however caused by reason of any action taken or not taken by HiFX as contemplated in clause 15.2(a) above.
15.3 The Client agrees to provide all information and documents to HiFX which HiFX and its bank counterparties reasonably requires to comply with any law in Australia or any other country, including any AML/CTF Laws. The Client agrees that HiFX may disclose information which the Client provides to HiFX and any historical or proposed transactional or payment information (including information about recipients of payments) if disclosure is required by, or for the purposes of compliance by HiFX or a bank counterparty with, any law or regulation in Australia or in any other country.
15.4 HiFX will, its bank counterparties may, need to conduct checks on the Client to comply with AML/CTF Laws. The Client authorises HiFX to use electronic and such other means of conducting AML/CTF checks as HiFX deems to be necessary, including using third party service providers. The Client authorises HiFX to provide personal information provided by the Client or a third party about the Client and third persons connected with the Client to such third party services providers for the sole purpose of the third party service provider undertaking those AML/CTF checks on behalf of HiFX (and no other purpose).
15.5 Client information will only be disclosed outside of the HiFX Group:
(a) when required by law, or requested by a regulatory body, or when required for the purposes of compliance with law by HiFX’s bank counterparty and any bank through which a payment is to be or has been made to, from, or on behalf of the Client; or
(b) in accordance with this clause 15.
15.6 The Client warrants that if any personal information has been provided to HiFX by or on behalf of the Client in relation to third persons connected to the Client, each such person has authorised the Client to provide such personal information to HiFX to be used, held and disclosed in the manner set out in these Terms.
15.7 The Client represents and warrants to HiFX that the payment of moneys by HiFX in accordance with the Terms, or any instructions given by the Client, will not breach any law in Australia or any other country.
16. GOVERNING LAW
16.1 These Terms and any agreement will be governed by and interpreted according to the laws of the State of New South Wales and the Client consents and submits to the jurisdiction of the courts of the State of New South Wales.
16.2 The Client warrants that the Client will, on request, supply HiFX with all the information and documentation necessary to enable HiFX to comply with relevant legislation pertinent to the Service.
16.3 Without limiting the foregoing, the Client warrants and acknowledges that laws regarding foreign exchange contracts vary throughout the world, and it is the Client’s obligation to ensure that they fully comply with any law, regulation or directive, relevant to their country of residency with regards to FX Transactions and the Service. The Client is responsible for ensuring that its use of the HiFX Service complies with all relevant laws, regulations and directives.
17. AUTHORISED PERSONS
17.1 The Authorised Persons named during the application process are each authorised by the Client to give instructions for the Services to be acquired from HiFX by the Client.
17.2 If the Client notifies HiFX that it is authorising a person to convey the Client’s instructions to HiFX, HiFX is entitled to rely on the instructions of that person and implement them.
18.1 HiFX collects and retains information about the Client that HiFX believes is necessary to help administer business between the two parties and to keep the Client aware of improvements to HiFX’s services and products and to provide the Client with other relevant information. HiFX collects two types of information:
(a) personal information such as names, addresses, email addresses; and
(b) traffic pattern information and FX Transaction information on the Client’s HiFX trading.
18.2 Personal information is collected to meet both internal and external compliance requirements, and to enable HiFX to open an Account for the Client and be in a position to commence business. FX Transaction information reflects the business of the Client with HiFX and provides a historical record of business activity which is necessary as a means of monitoring and mitigating money-laundering and also to enable HiFX to manage the Client’s Account and provide FX Transactions and services to the Client, to keep aware of the Client’s foreign currency exchange needs, to market services to the Client, and to enforce legal obligations owing to HiFX.
18.3 Client information may be disclosed and used as among members of the HIFX Group for the provision of foreign currency exchange services to the Client.
18.4 Client information will only be disclosed outside of the HiFX Group in the circumstances set out in clause 15.5.
18.5 HiFX does not sell, publish or freely give away Client personal or FX Transaction information. The Client’s personal information will be treated strictly in accordance with the governing law and HiFX’s policies from time to time.
19.1 Remuneration of HiFX and its representative: How HiFX and its representatives are remunerated for the Services provided to the Client (including in respect of any advice given to the Client) are detailed in HiFX’s Disclosure Documents. The Client acknowledges and agrees to that remuneration.
19.2 Remuneration of affiliates: HiFX pays a commission to affiliates and other parties who refer a person to HiFX where the person becomes a HiFX client and transacts with HiFX.
Unless the context otherwise requires, the following expressions are defined for this agreement.
Account means, in relation to the Client, a running account maintained by HiFX for the purpose of recording credits and debits in relation to FX Transactions, Margin and other financial requirements.
Agreement means the agreement between HiFX and the Client on these Terms made when HiFX accepts the Client’s application, as these Terms are amended from time to time.
AML/CTF Laws means anti-money laundering and counter-terrorism financing laws in Australia and equivalent laws in other applicable jurisdictions.
Application Form means the form of application by which a person applies to become the Client of HiFX and to open an Account, as accepted by HiFX, by whatever means that form is given.
Authorised Person means the person (if any) described as the Client’s authorised agent in the Application Form or another person later notified by the Client to HiFX in accordance with these Terms.
Bought Currency means the amount of currency received by the Client in return for the Sold Currency.
Business Day means a day on which the trading banks are open for business in Sydney, Australia excluding a Saturday, Sunday or public holiday.
Client means the person who, as the applicant, completes, signs, and delivers to HiFX the Application Form, as accepted by HiFX as the Client.
Close Out means to enter into an equal and opposite FX Transaction with the effect of terminating the original FX Transaction resulting in a set-off of the amounts owing on each of those FX Transactions and a net amount owing.
Confirmation means HiFX’s electronic or other written notification sent to the Client setting out the details of a FX Transaction or onward payment on behalf of the Client.
Currency Online means Currency Online, a trading name of HiFX.
Disclosure Documents means HiFX’s financial service guide and product disclosure statement applicable at the time of the Client entering into a FX Transaction or other product with HiFX, a copy of the current version of which is available on HiFX’s websites.
Forward FX Transaction means a FX Transaction whose Value Date is later than two Business Days after the transaction is agreed.
FX Transaction means any transaction between the Client and HiFX to purchase and deliver currency (including spot transactions and forward delivery transactions).
GST means tax that is imposed as a goods and services tax under any of:
(a) A New Tax System (Goods and Services Tax) Act 1999; or
(b) any regulation made pursuant to the A New Tax System (Goods and ServiceTax) Act 1999.
Hedge Contract means a contract, deed, agreement or other instrument between HiFX and a Hedge Counterparty, including master agreements, individual transactions (whether written or not) and credit or collateral arrangements for them, for or in relation to foreign exchange transactions including payments to Hedge Counterparties as security or collateral for those transactions.
Hedge Counterparty means any bank, related body corporate of a bank or other regulated financial corporation which is a counterparty to HiFX in its contractual dealings to hedge its exposure to foreign exchange transactions with clients.
HIFX means HiFX Limited (ARBN 106 779 953) whose registered office is at Level 15, 66 Wyndham Street, Auckland New Zealand.
HIFX Group comprises HiFX, HiFX Australia Pty Limited of Australia, HiFX Plc. of England and their associated and related bodies corporate.
Loss means a damage, loss, cost, expense or liability incurred by the person concerned, however it arises and whether it is present or future, fixed or unascertained, actual or contingent.
Margin means the amount credited to the Account after payment to HiFX by the Client, adjusted for any reduction corresponding with payments by HiFX to the Client. Margin is part payment for the Bought Currency.
Margin Call means a request by HiFX to the Client to pay such additional amounts (not exceeding the full amount of the Sold Currency) as it may reasonably require.
Market Order means an Order under which the Client requests to enter into a Spot FX Transaction or Forward FX Transaction with HiFX in the future in accordance with clause 10 when the relevant exchange rate reaches the Target Rate.
Order means the Client’s request for a FX Transaction.
Same Day FX Transaction means a FX Transaction whose Sold Currency is sold for the Bought Currency by the end of the same Business Day.
Schedule means the schedules that are attached to this agreement which form part of this agreement.
Security has the meaning given in clause 11.3, namely, the first registered security granted by HiFX over the Security Trust Accounts; and HiFX’s rights under its Hedge Contracts.
Security Information means any email address, logon code, password of the Client (including of an Authorised Person) used for the On-line Service.
Security Trust means the trust entered into between HiFX and the trustee of it on behalf of all clients of HiFX with FX Transactions, containing the terms, powers and rights of the trustee in relation to the Security declared by HiFX from time to time over a Security Trust Account. The terms of the Security Trust are available free of charge on request.
Security Trust Account means a bank account nominated by HiFX from time to time to be subject to the Security. HiFX may have more than one Security Trust Account from time to time.
Service means the financial service of issuing a FX Transaction to the Client, managing the FX Transaction (including settlement of providing it), the Account and all ancillary services.
Sold Currency means the sums payable in the agreed currency by the Client to HiFX in consideration of the FX Transaction including, without limitation, any Margin.
Spot FX Transaction means a FX Transaction where the Value Date is two Business Days after the date the Client’s Order is accepted.
Target Rate means the rate as which a Market Order, is executed, being the exchange rate specified by the Client for the Market Order plus HiFX’s margin over the wholesale exchange rate HiFX is able to obtain from its bank counter parties.
Tax means any present or future tax, levy, impost deduction, charge, duty, compulsory loan or withholding (together with any related interest, penalty, fine or expense in connection with any of them) levied or imposed by any Goverment agency, other than any imposed on overall net income.
Transfer Threshold means the range (or ranges) listed on HiFX’s website as attracting a Transfer Fee if the amount of the Sold Currency transacted falls within that range.
Transfer Fee means the fee listed on HiFX’s website charged by HiFX (in Sold Currency) when the amount of the Sold Currency transferred falls within the Transfer Threshold.
Trust Deed means the deed of trust entered into between HiFX and the Trustee on behalf of Clients, containing the terms, powers and rights of the Trustee in relation to the Security.
Value Date means the date specified by HiFX on which the FX Transaction matures.
Volatile Market Conditions means abnormal or unusual conditions in any foreign currency market that, in the opinion of HiFX, results in, or is likely to result in, a material effect, volatility or uncertainty in the price or availability of any currency.
Xe means Xe, a trading name of HiFX.
SCHEDULE 1 ON-LINE SERVICES
1. This Schedule 1 contains provisions which, in addition to the other Terms, govern the use of any on-line or other electronic transacting or any information service HiFX provides or makes available to the Client (including, without limitation, all software and communication links) under which the Client will (among other things):
(a) place the Client’s Orders (which results in a FX Transaction upon HiFX accepting the Client’s offer made when using the On-line Services system (see paragraph 7 of this Schedule 1)) or transmit other instructions to HiFX or other persons;
(b) supply HiFX with onward payment instructions;
(c) enquire as to the availability or pricing or value of one or more FX Transaction;
(d) enquire into the Client’s Account balances and transactional history;
(e) receive market data and other information in relation to one or more FX Transactions; or
(f) receive Confirmations or other information in connection with the Account.
In this Schedule 1, HiFX refers to such a service as an On-line Service.
2. An On-line Service may be a proprietary service provided by HiFX, or a service provided to the Client by a third party pursuant to an arrangement with HiFX. To the extent that the On-line Service is provided to the Client by HiFX, HiFX grants the Client a non-exclusive and non-transferable licence to use the On-line Service subject to the terms in this Schedule 1.
3. The Client is bound by any terms of access to and use of the On-line Service which HiFX specifies and notifies to the Client, from time to time. If there is any inconsistency, those terms prevail over these Terms to the extent of any inconsistency.
4. The Client agrees that:
(a) it must not use the On-line Service (or permit or procure any other person including any Authorised Person to use the On-line Service) until the Security Information has been provided by HiFX;
(b) the Security Information is confidential;
(c) it is responsible for maintaining the confidentiality and use of that Security Information at
all times and must procure that any Authorised Person maintains the confidentiality of the Security Information; 9.
(d) it will not permit, consent or allow any person (other than any Authorised Person in its capacity as the Client’s agent) to use the Security Information or to access or use the On-line Service using that Security Information;
(e) it will not provide, disclose or make available the Security Information to any person (other than an Authorised Person in its capacity as the Client’s agent); and
(f) it must notify HiFX immediately upon becoming aware of any unauthorised disclosure or use of the Security Information or the use of the On-line Service.
5. The Client acknowledges and agrees that:
(a) it is only permitted to access and use the On-line Services system by using the Security Information;
(b) HiFX may rely on all instructions and Orders given by, on behalf of, or apparently on the Client’s behalf, using the On-line Services system accessed using the Security Information despite any other provision of the Terms, and that HiFX is not liable for any Loss caused by HiFX acting on instructions or other communications provided to HiFX via the On-line Services system accessed using the Security Information;
(c) any On-line Service is provided on an "as is" basis and, except as required by law, HIFX makes no representations or warranties express or implied with respect to the On-line Service;
(d) the speed of information provided through the On-line Service is subject to a number of factors including, but not limited to, the speed of the user's internet connection, the user's settings, the number of concurrent users accessing the On-line Service and the volume of information being received and sent by the On-line Service;
(e) there are significant risks in trading through any online platform and you acknowledge these risks in using the On-line Service;
(g) the Client is responsible for providing and maintaining the communications equipment and telephone or alternative services required for accessing and using the On-line Service and for any communication service fees and charges incurred by the Client in accessing and using the On-line Service;
(h) the Client is responsible for ensuring the Client has in place alternative arrangements for the execution of Orders or other services available through the On-line Service, if the On-line Service or any aspect of it ceases to be available or subject to failure (including, for example, arrangements for the use of telephone, email or facsimile);
(i) the Client must notify HiFX immediately if the Client becomes aware of any inaccurate information being transmitted through the On-line Service including, for example, inaccurate content as to Orders, FX Transactions or Account balances; and
(j) the Client must only use the On-line Service for the Client’s own internal business or investment purposes.
6. The Client is responsible for reading, understanding and complying with the details of the operational aspects of the On-line Service. It is important that the Client reads and understands any user manuals and operational procedures or rules relating to the relevant On-line Service and which are made available by HiFX. Further information on how to use and understand the On-line Service can be obtained from HiFX’s website.
7. The following provisions apply to Orders placed through the On-line Services system:
(a) the Client may place an Order through the On-line Services system. Once placed, the Order is an irrevocable offer to enter into the relevant FX Transaction;
(b) before the Client places its Order, exchange rates may move. Movements will be shown on the On-line Services system. HiFX is not liable for any Loss incurred by the Client by reason of any such movement in exchange rates;
(c) the Client’s Order only results in a FX Transaction upon HiFX accepting the Client’s Order;
(d) HiFX will confirm acceptance of the Client’s Order by indicating on the On-line Services system that the FX Transaction is confirmed. HiFX will also email the Client a Confirmation of the FX Transaction in accordance with clause 4.4 of the Terms;
(e) there may be delays in the processing or acceptance of an Order entered through the On-line Service and, without limiting paragraph 5(b) of this Schedule 1, HiFX will not be liable for any Loss incurred by the Client arising from any delay in the dissemination of market information or the processing of any Order;
(f) the acceptance of an Order placed through the On-line Services system (resulting in a FX Transaction being entered into) may be delayed by filters or other electronic features of the electronic system; and
(g) HiFX is not responsible for the processing or execution of any Orders submitted through the On-line Service system, regardless of who enters such Orders and regardless of whether or not there is an error in the Order entry or for any delays.
8. The Client and each Authorised Person must satisfy any requirements (including without limitation requirements as to knowledge, training, testing, procedures and controls) notified by HiFX to the Client from time to time and the Client is solely responsible for ensuring that an Authorised Person satisfies these requirements.
9. The Client is 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 HiFX for any Loss suffered by HiFX in respect of any such disclosure, use, actions or omissions.
10. HiFX (or any third party providing the On-line Service) may suspend, terminate or impose conditions on the use by the Client or any Authorised Person of the On-line Service at any time.
11. If the Client is uncertain as to whether the Client’s Order has resulted in an FX Transaction following the Client confirming the exchange rate being offered by hitting on the “Confirm (or similar) button” on the On-line Services system, the Client must make all reasonable attempts to verify whether the Order has been received, approved and effected prior to taking further action. The Client will be solely responsible and liable for any duplicate instruction that the Client places.
12. The Client is bound by any electronic communications between the Client (including the Client’s Authorised Person) and HiFX.
13. If a failure, interruption or malfunction of electronic communication between the parties prevents an Order from being placed then, without limiting this Schedule 1, neither party is liable to the other party for any Loss caused then by that failure, interruption or malfunction.
14. The Client acknowledges that all market data and information in relation to trading, volumes and pricing provided through any On-line Service is proprietary information of HiFX or another person and may be subject to restrictions imposed by HiFX or other person. The Client is responsible for complying with any such restrictions and must not seek or obtain rights or hold itself out as having rights in respect of the proprietary rights of HiFX or other person.
15. The Client must:
(a) only gain or attempt to gain access to HiFX’s electronic systems including the On-line Services in an authorised manner;
(b) not modify, alter, disassemble, decompile, reproduce, reverse engineer or connect any unauthorised attachments to the On-line Services in any form; and
(c) not display, copy, disseminate or use the information provided through the On-line Services except in respect of its FX Transactions and proposed FX Transactions, and in accordance with any applicable restrictions.
SCHEDULE 2 FX OPTIONS
1. INCORPORATION OF FX OPTION TERMS
1.1 These FX Options Terms are additional to and supplement the other Terms. They apply to FX Options issued by HiFX to the Client.
2.1 HiFX may at its absolute discretion provide the Client with a FX Option quotation from time to time.
2.2 The quotation will give details as mentioned in clause 3 of these FX Option Terms.
2.3 HiFX may change the Premium stated in the quotation prior to the Client confirming its agreement to the FX Option and subsequent issuance of a Confirmation.
2.4 The Client will instruct HiFX to confirm the details of the quotation or revise the quotation orally before acceptance.
2.5 Once the quotation has been orally agreed to, the FX Option is agreed and issued and then a Confirmation will be issued to the Client.
3. DETAILS TO BE INCLUDED IN THE CONFIRMATION
3.1 The Confirmation of the FX Option will include:
(a) Quotation/Confirmation Date and time of transaction.
(b) The currency and amount sold to HiFX (Sold Currency).
(c) The currency and amount bought from HiFX (Bought Currency). (d) Expiration Date.
(e) Expiration Time.
(f) Settlement Date.
(g) FX Guaranteed Rate.
(h) Premium payable/due.
(i) Premium Payment Date.
4. FINANCIAL PROVISIONS
4.1 The performance by HiFX of the FX Option is subject to payment of the Premium by the Premium Payment Date by the Client to HiFX.
4.2 The Client must pay the Premium into a Security Trust Account specified by HiFX no later than the Premium Payment Date.
4.3 The Premium must be paid in the agreed currency and amount.
4.4 The Premium is not refundable under any circumstances, in whole or in part.
4.5 Failure by the Client to pay the Premium by the Premium Payment Date is a fundamental breach of these Terms and so entitles HiFX to exercise its rights under clause 12.1 of the Terms.
5. PROCESS OF EXERCISE
5.1 The FX Option will be deemed to be exercised when the Client gives valid notice to exercise the FX Option.
5.2 A notice to exercise will only be valid if completed on the Expiration Date before the Expiration Time, by the Client notifying HiFX of its wish to exercise the FX Option and HiFX has responded to and acknowledged receipt of such notification.
5.3 If valid exercise of the FX Option is completed then the specified payment obligations between HiFX and the Client will arise whereby a Spot FX Transaction will be created where the exchange rate will be the FX Guaranteed Rate of the FX Option that has been exercised.
5.4 Upon exercise of the FX Option, the Client must sell and make delivery of the specified amount of the Sold Currency to HiFX, and the Client must buy and take delivery of the specified amount of the Bought Currency from HiFX on the Settlement Date.
6.1 The other Terms apply generally to all FX Option Transactions, but if there is any inconsistency between the other Terms and the FX Option Terms, the FX Option Terms will prevail.
7. INTERPRETATION OF FX OPTION TERMS
Exercise means the process whereby the Client gives notice to HiFX on the Expiration Date that the FX Option’s underlying FX Transaction is required and the consequent creation of the appropriate FX Transaction as provided in clause 4 of these FX Option Terms.
Expiration Date means the day on which the Client 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 Sold Currency and the Bought Currency, agreed at the time the FX Option is issued or is confirmed.
FX Option means an agreement by which the Client has the right but not the obligation to enter into a FX Transaction with HiFX as specified in the Confirmation.
FX Option Terms means these Terms in this Schedule 2 for FX Options, as amended from time to time.
Premium means the consideration payable to HiFX by the Client 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 the Client to the Security Trust Account of HiFX.
SCHEDULE 3 TRUSTEE ADDITIONAL REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS
1. TRUSTEE OF A TRUST
If the Client is the trustee of a trust (Trust), the Client represents and warrants to HiFX 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 (Trust Deed) has been duly executed and duly stamped, in each case in accordance with the laws of each State and Territory of Australia;
(b) the Trust Deed and its constituent documents enable the Client to enter into these Terms and any other of the Client’s agreements with HiFX despite any conflict of interest and duty which may arise on the Client’s part; and, if the Client is a company, any of the Client’s directors, when entering into the FX Transactions contemplated with HiFX;
(c) 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 Trust Deed, any other document or any law for the entry into, observance and performance by it of its obligations under these Terms;
(d) each of the Client’s obligations under, and the FX Transactions contemplated by, these Terms constitute binding obligations and are completely and lawfully enforceable against the Client and the Trust's property in accordance with their terms;
(e) HiFX’s rights under these Terms and any other of the Client’s agreements with HiFX have priority over the interests of the beneficiaries of the Trust;
(f) the Client is the only trustee of the Trust;
(g) no property of the Trust has been re-settled, set aside or transferred to any other trust or settlement;
(h) the Trust has not been terminated, nor has the date or any event for the vesting of the Trust's property occurred;
(i) 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;
(j) no action has been taken, or has been proposed, to remove the Client as trustee of the Trust, or to appoint additional or alternate trustees;
(k) there is no conflict of interest on the Client’s part in entering into these Terms and performing the Client’s obligations under them or the FX Transactions contemplated by them;
(l) (as appropriate) each of the manager and the investment manager of the Trust is authorised to act on the Client’s behalf and to instruct HiFX in relation to any dealing and in relation to all other matters arising under these Terms;
(m) the Client will be bound by any instructions given to HiFX by or any actions of the manager
or the investment manager (as the case may be) as if the actions of the investment manager (iii) were the Client’s actions for the purpose of these Terms;
(n) the Client authorises each of the manager and the investment manager to accept any
notices or documents on its behalf and if HiFX has an obligation to serve any document or
notice on the Client pursuant to these Terms, or any law, service upon either the manager or (iv) the investment manager (as the case may be) will be effective service on the Client;
(o) the Client has an unrestricted right to be fully indemnified or exonerated out of the Trust's
property in respect of any losses or liabilities incurred by the Client (except only in respect fraud or breach of the Trust Deed of or the Client’s trustee duties) and the Trust documents do not restrict the right of HiFX to have recourse to the assets of the Trust to satisfy and liability to HiFX properly incurred by the Client arising out of the FX Transactions contemplated with HiFX and the Trust's property is sufficient to satisfy that right of indemnity or exoneration;
(p) the Client has complied with the Client’s obligations in connection with the Trust; (viii)
(q) the Client is authorised to open bank accounts; and
(r) the Client is authorised to enter into contracts in relation to trust property, in the Client’s personal capacity.
2. RESPONSIBLE ENTITY OF A FUND
If the Client is the responsible entity of a fund (Fund):
(a) The Client undertakes that the Client must not retire as responsible entity of the Fund unless the Client give notice to HiFX of the Client’s intention to retire and upon satisfaction of the following conditions:
(i) the successor responsible entity must be acceptable to HiFX; and
(ii) the successor responsible entity must execute whatever documents HiFX reasonably requires to ensure that these Terms are binding on it.
(b) The Client will (or will procure that the following will be done) in relation to the Fund, ensure that other than with HiFX's prior consent:
(i) the constitution of the fund (Fund Constitution) is not amended in any way which could have a material adverse affect on the Client’s ability to comply with the Client’s obligations under these Terms or could otherwise be prejudicial to HiFX;
(ii) the Fund Constitution is not revoked;
(iii) if the Client determines that the Fund Constitution, the compliance plan for the Fund, or any custodian or other agency agreement entered into by the Client in connection with the Fund is required by law to be changed or replaced, the Client promptly gives to HiFX full details of the requirement and copies of the documentation the Client proposes 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 these Terms;
(v) the Client’s obligations under the Fund Constitution and at law are fully complied with;
(vi) except in accordance with this clause 2 no other person is appointed responsible entity of the Fund;
(vii) subject to section 601FM of the Corporations Act and except if and to the extent that the Client has retired as responsible entity of the Fund in accordance with this clause 2 nothing is done which would cause or enable the Client’s removal as responsible entity of the Fund, nor retire as responsible entity;
(viii) appoint a custodian or other agent to carry out any of the Client’s 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 2;
(x) the vesting date under the Fund Constitution is not changed or fixed;
(xi) subject to the Corporations Act nothing occurs which could limit, exclude or otherwise derogate from in any material way the Client’s 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, the Client’s lien over the property of the Fund will have priority over the rights of the members of the Fund.
(c) The Client represents and warrants 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 each State and Territory of Australia;
(ii) the Fund Constitution and its constituent documents give the Client power:
(A) to carry on all of the business activities now conducted by the Client in any capacity;
(B) to enter into and comply with the Client’s obligations under, and to carry on the FX Transactions contemplated by, these Terms;
(iii) 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 the Client of the Client’s obligations under these Terms;
(iv) each of the Client’s obligations under, and the FX Transactions contemplated by, these Terms constitute binding obligations and are completely and lawfully enforceable against the Client and the Fund's property in accordance with their terms;
(v) the Client is the only responsible entity of the Fund;
(vi) no property of the Fund has been re-settled, set aside or transferred to any other trust or settlement;
(vii) the Fund has not been terminated, nor has the date or any event for the vesting of the Fund's property occurred;
(viii) 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;
(ix) there is no conflict of interest on the Client’s part in entering into these Terms and performing the Client’s obligations under them or the FX Transactions contemplated by them;
(x) except as required by the Corporations Act and except to the extent expressly stated in the Fund Constitution, the Client’s 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; and without limitation the Client has no liability which may be set-off against that right of indemnity; and
(xi) the Client has complied with the Client’s obligations in connection with the Fund.
3. TRUSTEE OF A SUPERANNUATION FUND
If the Client is a trustee of the superannuation fund (Fund), the Client represents and warrants to HIFX that:
(a) the FX Transactions contemplated by these Terms insofar as they concern the Fund:
(i) comply with all requirements of the Superannuation Industry (Supervision) Act 1993 (SIS Act);
(ii) have been or are to be implemented in accordance with an investment strategy undertaken in accordance with the SIS Act;
(iii) comply with all the requirements of the constitution of the Fund (Fund Constitution) and rules applicable to the Fund, in force at the date of these Terms; and
(iv) have been or are undertaken on an arm's length basis, for value and on commercial terms.
(b) the Fund has been duly constituted and is validly existing and the Fund Constitution has been duly executed and duly stamped, in each case in accordance with the laws of each State and Territory of Australia;
(c) the Fund Constitution and its constituent documents give the Client power:
(i) to carry on all of the business activities now conducted by the Client in any capacity;
(ii) to enter into and comply with the Client’s obligations under, and to carry on the FX Transactions contemplated by, these 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 the Client of the Client’s obligations under these Terms;
(e) each of the Client’s obligations under, and the FX Transactions contemplated by, these Terms constitute the Fund’s binding obligations and are completely and lawfully enforceable against the Client and the property in accordance with their terms;
(f) the Client is 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 the Client’s part in entering into these Terms and performing the Client’s obligations under it or the FX Transactions contemplated by it;
the Client has an unrestricted right to be fully indemnified or exonerated out of the Fund's property in respect of any losses or liabilities incurred by the Client and the Fund's property is sufficient to satisfy that right of indemnity or exoneration; and
(k) the Client has complied with the Client’s obligations in connection with the Fund.
4. AGENT UNDER INVESTMENT MANAGEMENT AGREEMENT
If the Client is an agent of a Client (Investor) who has entered into an agreement relating to the holding and investment of assets (Investment Management Agreement):
(a) the Client will ensure that, without HiFX's prior consent:
(i) the Investment Management Agreement is not determined or amended in any way which could have a material adverse affect on the Client’s ability to comply with the Client’s obligations under these Terms or could otherwise be prejudicial to HiFX; and
(ii) the Client’s obligations under the Investment Management Agreement and at law are fully complied with;
(b) the Client represents and warrants to HiFX that:
(i) the Client has received written acknowledgment from each Investor to the effect set out in the remainder of this paragraph 2(a) and paragraph 2(b) of this Schedule and the Client is not aware of anything that causes the Client to suspect that anything in those paragraphs is incorrect;
(ii) the Investment Management Agreement is valid and binding on the Client and the Investor, respectively;
(iii) the Client has 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 FX Transactions contemplated by, these Terms as agent for the Investor;
(iv) the Investor will be bound by instructions provided by the Client to HiFX as if the Investor were named in these Terms as the Client and will be bound by any Transaction entered into by HiFX on the Client’s instructions;
(c) if an Investor is a trustee, the Investor has warranted to the Client and the Client 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 FX Transactions contemplated by, the Investment Management Agreement and each Transaction entered into by the Client on its behalf in connection with these Terms; and each of its obligations under, and the FX Transactions 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 Transaction entered into by the Client on its behalf in connection with these Terms and to carry on the FX Transactions contemplated by these Terms;
(iii) to carry on the trust's business as now conducted or contemplated and to own the trust's assets, in its 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 it to enter into and perform the Investment Management Agreement and FX Transactions entered into by the Client on its behalf in connection with these Terms (this includes all necessary resolutions and all consents and approvals); and
(d) the Client enters into these Terms as agent of each of the Investors and in the Client’s personal capacity.
1. HIFX COLLECTS, USES AND HOLDS YOUR PERSONAL INFORMATION FOR THE FOLLOWING PURPOSES:
HiFX collects, holds and uses your personal information for the following reasons:
a. To open, operate, administer and maintain your account and all products and services provided to you by HiFX, its bank counterparties, or nominated Affiliates.
b. To keep you informed of improvements to HiFX’s services and products and to provide you with other relevant information about HiFX, its products and services.
c. To establish your tax status, and monitor whether information must be disclosed to the Government and foreign governments under any Australian, New Zealand or foreign legislation pursuant to an agreement with any tax authority.
d. To confirm your identity and address, for example, electronically match your personal information with identification information on third party databases.
e. To prevent, investigate, monitor or screen any actual or suspected money laundering, financing of terrorism, fraud, crime or misconduct.
f. To manage your relationship with HiFX, for example to respond to your queries, consider any concerns or complaints that you raise against HiFX, and to manage any legal action between you and HiFX and collecting debts.
g. To perform other administrative and operational tasks, including risk management, systems development and testing, conduct market research, data processing and statistical analysis.
h. To comply with orders, summons, directions and written notices issued to HiFX by a regulator with enforcement powers over HiFX such as the Financial Markets Authority or the Australian Securities & Investment Commission, in execution of their statutory information gathering and enforcement powers.
i. For purposes as required by relevant laws, regulations and external payment systems
j. For the purpose of performing a credit check.
k. To collect information about how you use the HiFX and other websites to help us improve our services and products. HiFX may do this when you visit the HiFX websites or a website where the HiFX services are advertised. The information we collect in this way is general information only derived from cookies, such as the number of visitors to the website, and does not identify you. We identify you when you log into an online HiFX service. We use and/or disclose this information as outlined in these privacy disclosures.
l. Through automated processes we may create individual profiles for customers based on a combination of indirectly indentifiable personal information (for example, client ID numbers and online identifiers such as IP addresses) and other information gathered through our customer’s interaction with our Services. We may use these profiles to better understand the ways in which you use our services. In addition, we may send personalised communications to you based on a profile (including pricing offers in relation to the services or the services and products of Xe companies which may include Xe Corporation, Inc.), if we have a basis to send such communications in accordance with this Privacy Notice. You can let HiFX know if you do not want to receive marketing information from us or our related companies and third party service providers (see section 4 for contact details for making this request).
2. LOCAL AND OVERSEAS RECIPIENTS OF YOUR PERSONAL INFORMATION:
HiFX may disclose your personal information to the following recipients for the purposes stated in 1
a. HiFX, its related companies (HiFX has related companies in United Kingdom, Canada and the United States), its bank counterparties (HiFX has bank counterparties in New Zealand, Australia, United States and United Kingdom), banks that are involved in the transaction that you conduct through HiFX (worldwide, depending on where your funds will come from and go to), and its Affiliates (HiFX has Affiliates worldwide);
b. Third party service providers (HiFX has third party service providers in Australia, United Kingdom, Canada and the United States) that manage enable or facilitate certain aspects of our service, including electronic verification service providers, financial services provider (such as banks), auditors, IT development, maintenance and reporting providers and communication fulfillment providers to facilitate our communications with you;
c. The police, certain governmental agencies or other financial institutions, where we reasonably believe that disclosure will assist the investigation, detection, and/or prevention of money-laundering, fraud or other criminal offences;
d. The Government and foreign governments where we believe disclosure is required to comply with regulatory and other requirements;
e. Credit reporting agencies in New Zealand, Australia, and Canada for the purpose of verifying the identity of customers in accordance with the Anti-Money Laundering and Countering Financing of Terrorism Act 2009;
f. Regulators with enforcement powers over HiFX such as the Financial Markets Authority or the Australian Securities & Investments Commission;
g. Debt collection and credit agencies;
h. Any other party authorised by you.
3. YOU PROVIDE HIFX WITH AUTHORITY AS FOLLOWS:
If you do not agree to provide these consents then please do not indicate that you authorise us as outlined in these privacy disclosures.
a. If you are resident in Australia, you authorise and consent to HiFX disclosing to overseas recipients as outlined in 2, for the purposes stated in 1. You agree that in respect of disclosures to overseas recipients, Australian Privacy Principal 8.1 will not apply and if the overseas recipient handles any of your personal information in breach of the Australian Privacy Principles, HiFX will not be accountable to you under the Australian Privacy Act and you will not be able to seek redress under that Act. In addition, the overseas recipient of your information may not be subject to any privacy obligations or to any principles similar to the Australian Privacy Principles. You may not be able to seek redress against that overseas recipient of your information in the relevant overseas jurisdiction. The overseas recipient is subject to a foreign law that could compel the disclosure of your personal information to a third party, such as an overseas authority.
b. Where an Affiliate has introduced you to HiFX, you authorise and consent to HiFX disclosing to that Affiliate from time to time, your name and any profit HiFX makes on your FX Transactions for the purposes of HiFX complying with its obligations under its agreement with that Affiliate. If you are resident in Australia, and the Affiliate is outside of Australia, you agree that Australian Privacy Principal 8.1 will not apply and if the overseas recipient handles any of your personal information in breach of the Australian Privacy Principles, HiFX will not be accountable to you under the Australian Privacy Act and you will not be able to seek redress under that Act. In addition, the Affiliate may not be subject to any privacy obligations or to any principles similar to the Australian Privacy Principles. You may not be able to seek redress against the Affiliate in the relevant overseas jurisdiction. The overseas recipient is subject to a foreign law that could compel the disclosure of your personal information to a third party, such as an overseas authority.
c. To obtain your personal information from its related companies in United Kingdom, Canada and the United States, from its bank counterparties in New Zealand, Australia, United States and United Kingdom, from its Affiliates and suppliers of service, and from financial institutions involved in transactions that you conduct through HiFX, for the purpose set out in 1 above.
d. To access the credit reporting agencies in New Zealand, Australia, and Canada to verify your identity and address with information held by the credit reporting agencies;
e. If you are resident in Australia, you authorise HiFX to access the Australian Document Verification Service to verify your identity and address with information held by the issuing authorities and legal authorities responsible for Visas, Passports, ImmiCards, Driver Licenses, Citizenship Certificates, and Certificates of Registration by Descent;
f. If you are resident in New Zealand, you authorise HiFX to access the New Zealand Traffic Authority and the New Zealand Government Confirmation Service (ICT) to confirm if your identity information provided to HiFX is consistent with the Department of Internal Affairs source data;
g. To record all your telephone conversations with HiFX.
4. USE OF YOUR PERSONAL INFORMATION FOR MARKETING PURPOSES
As part of our service to you, HiFX may use your personal information to identify products and services that may benefit you. HiFX may send you information from time to time about new or existing products and services.
HiFX may disclose your personal information to related companies and third party service providers to enable them to send you information about products or services.
You can let HiFX know if you do not want to receive marketing information from us or our related companies and third party service providers . The contact details for making this request are:
Telephone: 0800 394 439 (New Zealand) or 1 800 006 592 (Australia)
Postal address: PO Box 7646, Wellesley Street, Auckland, New Zealand
5. YOU HAVE ACCESS TO YOUR INFORMATION
Your information is collected and held by HiFX at Level 4, 32 Mahuhu Crescent, Auckland, New Zealand. You have the right to access your own personal information, and to correct your personal information, held by HiFX.
6. APPLICABLE LAWS
HiFX is required to collect personal information from you to establish your identity and address, and to prove your identity and address by collecting your driver’s licence, passport details, or motor vehicle registration details, in compliance with the Anti-Money Laundering and Countering Financing of Terrorism Act 2009 (New Zealand).
HiFX is required to collect information about your tax residency status. This is required under legislation in New Zealand and Australia published for the purpose of implementing taxation information sharing agreements. For example, New Zealand and Australia, respectively, has agreements in place with the United States that requires HiFX to collect information about US tax residency from our clients.
7. CONSEQUENCES IF WE DO NOT COLLECT PERSONAL INFORMATION FROM YOU
You are required to provide HiFX with complete and accurate information. If HiFX does not have complete and accurate information about you, we may decline your application for products and services.
It is important that you inform us if there are any important changes in the information that you provided to HiFX in your application, or in your contact details.
Xe money transfer, provided by HiFX Limited. HiFX Limited holds a Derivatives Issuer Licence, and is regulated by the Financial Markets Authority in New Zealand. HiFX Limited also holds an Australian Financial Services Licence (AFSL: 240914) and is regulated by the Australian Securities and Investments Commission. Company Registration No. 1121503 ABN: 54 106 779 953
HiFX Ltd - PO Box 7646, Wellesley Street, Auckland 1141, New Zealand. HiFX PTY Ltd - Level 1 75 Castlereagh Street Sydney NSW 2000 Australia.
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