FORMAX International Market Limited
THIS AGREEMENT is made the date stated in the Account Opening Form
1. Formax International Market Limited, a company incorporated in New Zealand with its principal place of business at Level 7, 203 Queen Street, Auckland Central, New Zealand hereinafter referred as (the “Company”), (“FIML”), (“Formax”) or (“us”) ; and Formax International Market Ltd
2. The party whose name, address and details are set out in the Account Opening Form hereinafter referred as (the “Client”), (“you”) or (“You”).
The Client agrees that all of the terms and conditions of this Agreement shall be legally binding on the Client.
“Account” means any one or more securities trading accounts now or hereafter opened in the name of the Client with the Company pursuant to this Agreement;
“Account Opening Form” means Schedule 1, including the declaration, information, notes and statements thereto to be completed and signed by the Client and, as the context requires, any amendments made thereto from time to time;
“Agreement” means this agreement, including the Account Opening Form and the various Schedules attached hereto, as originally executed or as thereafter from time to time amended or supplemented;
“Associate” means, in relation to the Company, a body corporate which is its parent company, subsidiary or affiliated company in New Zealand or elsewhere;
“Authorized Person” means a person or persons designated by the Client in or pursuant to this Agreement to issue Instructions on behalf of the Client in relation to Accounts or Transactions and initially the persons named in the Account Opening Form;
“Business Day” means a day (other than a Saturday, Sunday or public holiday) on which banks are open for ordinary business in Wellington or Auckland, New Zealand.;
“Clearing House” means the relevant clearing house providing clearing services to the Exchange;
“Collateral” means all Securities and all monies on the Account which are now or which shall at any time hereafter be deposited with, transferred or caused to be transferred to or held by the Company or its Associates or nominees, including (without limitation) those monies and Securities that shall come into the possession, custody or control of the Company or its Associates from time to time in relation to the Account (which shall include any additional or substituted Securities and all dividends or interest paid or payable, rights, interest, monies or property accruing at any time by way of redemption, bonus, preference, options or otherwise on or in respect of any such Securities or additional or substituted Securities).
“Correspondent Agent” means anyone who acts as the Company’s agent in effecting Transactions or clearing the same anywhere in the world, including any member of an Exchange or Clearing House.
“Exchange” means a stock exchange which is permitted to operate in a country or territory outside New Zealand by the law of that country or territory, or any over the counter market;
“Electronic Services” means the services as defined in the Online Trading Agreement;
“Financial Markets Authority” means the New Zealand Financial Markets Authority, or any successor entity；
“Formax Group of Companies” means the Company and any of its related companies as specified in section 2(3) of the Companies Act 1993 as if 'company' includes a company or other entity constituted in New Zealand or any other jurisdiction.
“Instructions” means any instructions or orders communicated by the Client or its Authorized Persons to the Company in accordance with Clause 4.1;
“Securities” means any interests, rights or property (whether in the form of an instrument or otherwise) commonly known as securities or regarded as securities pursuant to the law including, without limitation:
a. shares, stocks, debentures, loan stocks, funds, certificates of deposit, bonds or notes of, or issued by, any person, government or municipal government authority;
b. rights, options, forward contracts, futures or interests (whether described as units or otherwise) in or in respect of any securities in (a) above;
c. certificates or receipts for, or warrants to subscribe for or purchase, any securities in (a) above; and (d) interests in any collective scheme; and
d. foreign exchange products.
“New Zealand Securities” means Securities listed on a New Zealand Exchange or issued by a New Zealand issuer;
“Transaction” means any transaction concerning the purchase, subscription, sale, exchange or other disposal of and dealing in any and all kinds of Securities (except New Zealand Securities) on any Exchange including (but not limited to) safe-keeping of Securities and the provision of nominee or custodian service therefore and other transactions effected under or pursuant to this Agreement. To avoid any uncertainty, the Company will not provide any services relating to New Zealand Securities.
2.1The Client (in the case of a corporation) authorizes the Authorized Persons to represent the Client in all matters in relation to all Transactions, to provide Instructions to the Company and to sign on the Client’s behalf all agreements and documents relating to the Account and its operation, including this Agreement. All such documents and Instructions shall be absolutely and conclusively binding on the Client.
2.2The Client (in the case of an individual) authorizes the Authorized Person(s) to operate the Account on the Client’s behalf and to provide Instructions to the Company.
2.3The Client agrees that the Company is entitled to act on the Instructions of the Authorized Person until the Client notifies the Company in writing that the Authorized Persons’ appointment and authority has been revoked or varied.
2.4Only the Client or its Authorized Person may place an order or give Instructions to the Company to trade in respect of the Account. Any and all orders placed, or Instructions given by the Authorized Person shall be deemed to be given or placed by the Client. The Client agrees to ensure that any and all of its Authorized Persons shall comply with all the terms and conditions of this Agreement.
2.5The Client shall promptly provide to the Company a notice of appointment of an additional Authorized Person or notice of change of the Authorized Person signed by all the Account holders and by the new, or additional, Authorized Person(s) so as to evidence their familiarity with, and agreement to comply with, this Agreement (together with contact details, and identification documents of such new Authorized Person).
2.6The Client acknowledges and agrees that the Client retains full responsibility for all Transactions and the Company is responsible only for the execution, clearing, and carrying out of Transactions and has no responsibility or obligation regarding any conduct, action, representation or statement of any introducing firm, investment advisor or other third party in connection with the Account or any Transaction therein. The Company is not responsible to the Client with respect to the suitability of any Transaction. The Company is not responsible for the profitability, tax, legal or accounting consequences of any Transactions.
2.7The Company provides execution only services and does not provide any financial advice. Any information provided by the Company, its directors, officers, employees or agents, whether or not solicited, shall not constitute an offer to enter into a Transaction, or an investment recommendation. The Client independently and without reliance on the Company, makes its own judgments on Transactions.
2.8The Client authorizes the Company to instruct such Correspondent Agents as the Company may in its absolute discretion select to execute Transactions and acknowledges that the terms of business of any such Correspondent Agent and the rules of any Exchange and Clearing House on and through which such Transactions are executed and settled shall apply to such Transactions and shall be binding on the Client.
3. Commissions, Charges and Interest
3.1The Company is authorized to deduct from the Account the Company’s commissions and charges in connection with any Transactions effected for the Client (as notified to the Client from time to time), all applicable levies imposed by the Exchange or Clearing House, brokerage, stamp duty, bank charges, transfer fees, interest and nominee or custodial expenses, immediately when due.
3.2The Company shall deposit all monies and Securities held on the Account and all monies and Securities received for or on the account of the Client into one or more trust account(s) at one or more authorized financial institution(s) for safekeeping. Any monies and Securities held by the Company shall be held on trust for the Client and shall be recorded and held in a separate account segregated from assets held by or for the Company.
3.3The Client shall pay interest on all debit balances on the Account (including any amount otherwise owing to the Company at any time) at such rates and on such other terms as the Company notifies the Client from time to time. Such interest shall accrue on a day-to- day basis and shall be payable on the last day of each calendar month or upon any demand being made by the Company. Overdue interest shall be compounded monthly and shall itself bear interest.
3.4The Client agrees to pay an account services fee that the Company may charge for the maintenance of the Client’s Account and notified to the Client from time to time, and authorises the Company to debit the Client’s Account for the same.
4.1All Instructions shall be given by the Client (or its Authorized Person) in person or in writing, delivered by hand, by post, [0800-0948-887,] [email@example.com] or in such other form as accepted by the Company from time to time.
4.2The Client acknowledges and agrees that any Instructions given or purported to be given to the Company by the Client or by any Authorized Person pursuant to this Agreement and which are acted on or relied on by the Company shall at all times be irrevocable and bind the Client, whether or not such Instructions are in fact given or authorized by the Client. The Company does not have any duty to enquire or verify the identity or authority of the person that it reasonably believes to be the Client or an Authorized Person and may act on any Instruction by such person without further enquiry or delay.
4.3The Company has the right, in its discretion and without assigning any reason for it, to refuse or delay to act on any Instruction given by the Client or its Authorized Person in respect of any particular Transaction. In any such event, the Company will not be liable for any price movements or fluctuations or any other loss, cost, charge or expense suffered or incurred by a Client.
4.4The Company may execute the Client’s Transactions through any Associate.
4.5The Client hereby grants the Company a power of attorney, to the fullest extent permitted by law, to act for and on the Client’s behalf for the purpose of carrying out the provisions of the Agreement and taking any action and executing any document or instrument in the Client’s name or in its own name which the Company may deem necessary or desirable to execute a Transaction.
4.6Transactions effected by the Company on the Client’s behalf are subject to the laws, regulations, and constitution, by-laws, rules, customs, and transaction levies of the relevant market, Exchange, Clearing House or jurisdiction as amended from time to time.
4.7The Company is hereby authorized to instruct overseas brokers and dealers (including but not limited to those in the United States of America, and the People’s Republic of China) to execute Transactions in overseas Securities on such terms and at such times as it deems fit and the Client hereby acknowledges that the terms of business of such overseas brokers and dealers shall apply to such Transactions and the Client agrees to be bound by such terms.
5. Dealing Practices
5.1Any day order for purchase or sale of Securities placed by the Client that has not been executed before the close of business of the relevant Exchange, or such later time as the Client and the Company may agree, shall be deemed to have been cancelled automatically.
5.2The Client authorizes the Company, at any time and at Company’s absolute discretion, for the purpose of obtaining a better execution price and/or reducing the volume of instructions, to consolidate and/or disaggregate the Client’s Instructions to purchase and/or sell Securities on the Client’s behalf with similar instructions received from the Company’s other Clients. The Client agrees that in the event of there being insufficient Securities available to satisfy the purchase/sell orders so consolidated, the number of Securities actually purchased/sold shall be attributed to the relevant Clients in the order in which those orders were received by the Company.
5.3The Client acknowledges that due to the trading practices of the Exchange or other markets in which Transactions are executed, it may not always be able to execute orders at the prices quoted „at best‟ or „at market‟ and the Client agrees in any event to be bound by Transactions executed by the Company following Instructions given by the Client.
5.4Subject to applicable laws and regulations and market requirements, the Company may in its absolute discretion determine the priority in the execution of its Clients‟ orders, having due regard to the order in which such orders were received, and the Client shall not have any claim of priority over another Client in relation to the execution of any order received by the Company.
5.5Unless otherwise agreed, in respect of each Transaction, unless the Company is already holding sufficient cash or Securities on the Client’s behalf to settle the Transaction, the Client shall pay to the Company cleared funds (including payment in a currencydesignated by the Company) or deliver to the Company Securities which are fully paid with valid and good title and in deliverable form by such time as the Company has notified the Client in relation to the Transaction. The Client shall be responsible to the Company for any losses and expenses resulting from the Client’s settlement failures.
5.6The Client shall immediately notify the Company after payment of funds to the Company by delivering to the Company written evidence of such payment. The Client acknowledges that payment of funds to the Company may not be accredited to the Client’s Account or reflected in any account statement until such notification is received by the Company.
5.7The Account shall be in such currency or currencies as the Company agrees from time to time with the Client. In the event that the Client instructs the Company to effect any Transactions in a currency other than the currency of the relevant Account, any profit or loss arising as a result of fluctuations in the exchange rate of the relevant currencies will be for the account of the Client solely. Any conversion from one currency into another required to be made in order to perform any action or step by the Company under this Agreement may be effected by the Company in such manner and at such time as the Company may in its absolute discretion decide. The Client authorises the Company to debit the Client’s Account for any expenses incurred in effecting the currency conversion. The Company reserves the right at any time to refuse to accept any Instructions from the Client in relation to currency conversion.
5.8The Client acknowledges that telephone calls or other forms of communication between the Client and the Company may be recorded or otherwise electronically monitored without any warning messages and that the record may be used as final and conclusive evidence of the Instructions in case of disputes. While such tapes regarding communication with the Client will remain the property of the Company, the Company will provide to the Client on the Client’s request and at the Client’s expense a copy of such tape. The Company shall have the right to impose reasonable charges for Client’s request for retrieval of records on Client’s personal data held by the Company.
5.9If the Company engages the service of Correspondent Agents, the Company shall be entitled to accept and keep, for its own account, any commission or rebate which the Company may receive in respect of any business the Company supplies to them on behalf of the Client.
5.10 The Company will act as the Client’s agent in effecting Transactions pursuant to this Agreement unless the Company indicates (in the contract note for the relevant Transaction or other written record issued by the Company) that it is acting as principal. For the avoidance of doubt, the Client unconditionally agrees that, in the case of any trading in any jurisdiction, the Company will be maintaining an omnibus account with the Correspondent Agents.
5.11 The Company shall not be liable for any delay or failure in the transmission of orders due to breakdown or collapse of communication facilities or for any other delay or failure beyond its control.
5.12 Request to cancel or amend the Client’s Instruction only possible before the order is executed. The Client agrees to accept full responsibility for any cancelled Transaction.
5.13 Market orders may result in unfavorable executions owing to volatile market conditions. Moreover, cancellation of market orders is rarely possible as they are subject to immediate execution.
6. Short Selling
1) The Client undertakes that it will not effect a short selling order through the Company. A short selling order is an order for the sale of Securities which the Client does not presently own, or is entitled to only as a result of borrowing these Securities.
2) The Client understands that where the Company is selling as agent, the Company shall not convey or accept an order to sell Securities which is a short selling order at or through any Exchange.
7. Conflict of Interest
7.1The Client acknowledges and agrees that the directors, officers or employees of the Company and/or the Formax Group of Companies and the Company’s Correspondent Agent may trade on its/ their own account or on the account of an Associate.
7.2The Company shall be authorized to buy, sell, hold or deal in any Securities or take the opposite position to the Client’s order whether it is on the Company’s own account or on behalf of an Associate or its other Clients.
7.3The Company is authorized to match the Client’s orders with those of any other clients.
7.4The Company or its agent may effect Transactions in Securities where the Company or its Associate has a position in the Securities or is involved with those Securities as underwriter, sponsor or otherwise.
7.5In any of the situations referred to in this Clause, the Company shall not be obliged to account to the Client for any profits or benefits obtained.
8. Client Identification
If the Client effects Transactions in Securities listed on any Exchange, or in derivatives related thereto, for the account of its own clients, whether on a discretionary or non-discretionary basis, and whether as agent or by entering into matching transactions as principal with its clients, the Client hereby agrees that, in relation to a Transaction where the Company has received an enquiry from a regulator in any jurisdiction, the following provisions shall apply.
8.1Subject as provided below, the Client shall, immediately upon request by the Company (which request may include the relevant contact details of the Financial Markets Authority), inform the Financial Markets Authority and/or the relevant regulator of any other jurisdiction of the identity, address, occupation and contact details, and relevant information of the Client for whose account the Transaction was effected and (so far as known to the Client) of the person with the ultimate beneficial interest in the Transaction. The Client shall also inform the Financial Markets Authority and/or the relevant regulator of any other jurisdiction of the identity, address, occupation and contact details and relevant information of any third party (if different from the client/ultimate beneficiary) who originated the Transaction.
8.2If the Client effected the Transaction for a collective investment scheme, discretionary account or discretionary trust the Client shall, immediately upon request by the Company (which request may include the relevant contact details of the Financial Markets Authority and/or the relevant regulator of any other jurisdiction), inform the Financial Markets Authority and/or the relevant regulator of any other jurisdiction) of the identity, address and contact details of the scheme, account or trust and, if applicable, the identity, address, occupation, contact details and relevant information of the person who, on behalf of the scheme, account or trust, instructed the Client to effect the Transaction.
8.3If the Client effected the Transaction for a collective investment scheme, discretionary account or discretionary trust, the Client shall, as soon as practicable, inform the Company when the Client’s discretion to invest on behalf of the scheme, account or trust has been overridden. In the case where the Client’s investment discretion has been overridden, the Client shall, immediately upon request by the Company (which request may include the relevant contact details of the Financial Markets Authority and/or the relevant regulator of any other jurisdiction), inform the Financial Markets Authority and/or the relevant regulator of any other jurisdiction of the identity, address, occupation, contact details and relevant information of the person(s) who has or have given the instruction in relation to the Transaction.
8.4If the Client is aware that its own client is acting as intermediary for its underlying client, and the Client does not know the identity, address, occupation and contact details of the underlying client for whom the Transaction was effected, the Client confirms that:
i.It has arrangements in place with its client which entitle the Client to obtain the information set out in Clauses 8.1 and 8.2 from its client immediately upon request or procure that it be so obtained; and
ii.It will, on request from the Company in relation to a Transaction, promptly request the information set out in Clauses 8.1, 8.2 and 8.3 from the client (and any information as may be requested by the Company from time to time) on whose instruction the Transaction was effected, and provide the information to the Company and the relevant regulator as soon as received from its client or procure that it be so promptly provided.
8.5The Client confirms that, where necessary, it has obtained all relevant consents or waivers from clients, collective investment schemes, discretionary accounts or discretionary trusts for whose account Transactions may be effected to release information to any regulators of any jurisdiction of the identity and contact details of such clients, collective investment schemes, discretionary accounts or discretionary trusts, and of the person(s) with the ultimate beneficial interest in any such Transactions, and (if different from the client/ultimate beneficiary) of the person(s) who originated the Transactions.
8.6The provisions of this Clause shall continue in effect notwithstanding the termination of this Agreement.
9.1The Company will keep information relating to the Account confidential but may disclose information where required by any Exchange or any regulatory, governmental or tax authority (including any overseas authorities).
9.2The Company’s policies and practices relating to disclosure and transfer of personal data are set out in Schedule 2 and Schedule 3 to this Agreement and the Client acknowledges and accepts the provisions in Schedule 2 and Schedule 3.
10. Safekeeping and Disposal of Securities
10.1The Client appoints the Company to act as custodian for the Client to provide custody of the Client’s Securities, and the Client agrees that the Company may engage any third party (in any jurisdiction) as the Company’s agent to perform the function of custodian. The Client agrees not to pledge, charge, sell, grant an option or otherwise deal in any Securities or money forming part of any Account without the prior written consent of the Company.
10.2Any Securities held in New Zealand or elsewhere by the Company for safekeeping on behalf of the Client may, at the Company’s asolute discretion (in the case of registrable Securities) be registered in the name of any nominee of the Company.
10.3Where Securities are held by the Company for safekeeping pursuant to this Clause, the Company shall itself, or shall procure any nominee or custodian appointed by it to:
i.Collect and credit any dividends or other income arising in respect of such Securities and deposit these to the Account or make payment to the Client as agreed with the Client. Where the Securities form part of a larger holding of identical Securities held for the Company’s clients, the Client is entitled to the same share of the benefits arising on the holding as the Client’s share of the total holding. Where the dividend is distributed either in the form of cash dividend or other forms, the Company is authorized to elect and receive on behalf of the Client the cash dividend in the absence of contrary prior written Instruction from the Client; and
ii.Comply with any Instructions received, in sufficient time to enable the Company to make the necessary arrangements, from the Client as to the exercise of any voting or other rights attaching to or conferring on such Securities provided that if any payment or expense is required to be made or incurred in connection with such exercise, neither the Company nor its nominee shall be required to comply with any Instructions received from the Client unless and until it receives all amounts necessary to fund such exercise.
10.4The Company and its nominee are not bound to redeliver to the Client the identical Securities received from or for the Client ut may redeliver to the Client, at the office of the Company at which the Account is kept, Securities of like quantity, type and description.
10.5The Company shall not be liable to the Client in respect of any expenses, loss or damage suffered by the Client in connection with the safekeeping of the Securities held by the Company on behalf of the Client unless such loss or damage has been caused as a direct consequence of a gross act of negligence, willful default or fraud on the part of the Company or its employees.
10.6The Client hereby expressly authorizes the Company to dispose of any Collateral for the purpose of settling any liability owed by the Client to the Company for dealing in Securities or any financial accommodation provided by the Company to the Client, in respect of any liabilities of the Client.
11. Events of default
11.1 Any one of the following events shall constitute an event of default („Event of Default‟):
i.The Client’s failure to pay any deposits or any other sums payable to the Company or its Associates or submit to the Company any documents or deliver any Securities to the Company hereunder, when called upon to do so or on due date;
ii.Default by the Client in the due performance of any of the terms of this Agreement and the observance of any by-laws, rules an regulations of the appropriate Exchange and/or Clearing House;
iii.upon the commencement of liquidation, bankruptcy or the insolvency of the other Client (except for the purposes of solvent amalgamation or reconstruction), or upon the appointment of a receiver, statutory manager or trustee of the Client’s property, or upon an assignment for the benefit of the Client’s creditors, or upon execution being levied against the Client, or upon the Client compounding with its creditors or being unable to pay its debts in the ordinary course of business, or the commencement of any analogous proceedings against the Client in any jurisdiction;
iv.The death of the Client (being an individual) or the Client is judicially declared insane or incompetent;
v.The levy or enforcement of any attachment, execution or other process against the Client;
vi.Any representation or warranty made by the Client to the Company in this Agreement or in any document being or becoming incorrect or misleading;
vii.Any consent, authorization or board resolution required by the Client (being a corporation or a partnership) to enter into or perform any obligation under this Agreement being wholly or partly revoked, suspended, terminated or ceasing to remain in full force and effect; and
viii.The occurrence of any event which, in the sole opinion of the Company, might materially jeopardize any of its rights under this Agreement or otherwise adversely affect the business or reputation of the Company or the Formax Group of Companies.
11.2 If an Event of Default occurs, without prejudice to any other rights or remedies that the Company may have against the Client and without further notice to the Client, the Company shall be entitled to:
i.Immediately close the Account;
ii.Terminate all or any part of this Agreement;
iii.Cancel any or all outstanding orders or any other commitments made on behalf of the Client;
iv.Close any or all contracts between the Company and the Client, cover any short position of the Client through the purchase of Securities on the relevant Exchange(s) or liquidate any long positions of the Client through the sale of Securities on the relevant Exchange(s);
v.Dispose of any or all Securities held for or on behalf of the Client and to apply the proceeds thereof and any cash deposit(s) to settle all outstanding balances owing to the Company or its Associates including all costs, charges, legal fees and expenses including stamp duty, commission and brokerage properly incurred by the Company in transferring or selling all or any of the Securities or properties in the Account or in perfecting title thereto;
vi.Borrow or buy any Securities required for delivery in respect of any sale effected for the Client; and
vii.Combine, consolidate and set-off any or all accounts of the Client in accordance with Clause 14.
11.3 All amounts due or owing by the Client to the Company under this Agreement shall become immediately due and payable if an Event of Default occurs.
11.4 In the event of any sale pursuant to this Clause:
The Company shall not be responsible for any loss occasioned thereby howsoever arising if the Company has used reasonable endeavours to sell or dispose of the Securities or any part thereof at the then available market price;
ii.The Company shall be entitled to keep for itself or sell or dispose of the Securities or any part thereof at the available market price to any person at its discretion without being in any way responsible for loss occasioned thereby howsoever arising and without being accountable for any profit made by the Company and/or any of the Associates; and
iii.The Client agrees to pay to the Company any shortfall if the net proceeds of sale shall be insufficient to cover all the outstanding balances owing by the Client to the Company.
12.1Either party may terminate this Agreement at any time by giving the other party no less than 3 Business Days’ notice in writing, without prejudice to the rights of the Company which accrued before the termination of this Agreement. The Company may also terminate this Agreement with immediate effect upon the occurrence of any one or more of the following events:
i.The Client (whether by notice or conduct) withdraws the authorization to undertake Transactions given to the Company under this Agreement; or
ii. The Client (whether by notice or conduct) withdraws of the Client’s appointment of the Company as the Client’s custodian in Clause 10.1.
12.2 Termination under this Clause shall not affect any Transactions entered into by the Company pursuant to this Agreement before the termination.
12.3 Upon termination of this Agreement under this Clause, all amounts due or owing by the Client to the Company under this Agreement shall become immediately due and payable. The Company shall cease to have any obligations to purchase or sell Securities on behalf of the Client in accordance with the provisions of this Agreement, notwithstanding any Instructions from the Client to the contrary.
12.4 Upon termination of this Agreement, the Company may sell, realize, redeem, liquidate or otherwise dispose of all or part of the Securities to satisfy all indebtedness of the Client to the Company and this Clause 12.4 shall apply to any such sale.
12.5 Any net cash proceeds received by the Company pursuant to a sale, realization, redemption, liquidation or other disposal under this Clause shall be credited to the Account and the net credit balance on the Account (if any) shall be returned to the Client, after first deducting or providing for all monies and sums due or owing and other liabilities accrued or accruing due to the Company and outstanding (whether actual or contingent, present or future or otherwise). All Securities not realized or disposed of together with any relevant documents of title in the Company’s possession shall be delivered to the Client at the Client’s sole risk and expense.
12.6 If a debit balance on the Account exists after application of the cash proceeds and deduction of any sums pursuant to this Clase, the Client shall immediately pay to the Company an amount equal to such debit balance together with the Company’s costs of funding such amount, as notified to the Client by the Company, up to the date of actual receipt of full payment by the Company (after as well as before any judgment).
12.7 The Company may effect such currency conversions as are necessary for the purposes of this Clause in each case at the spot rate of exchange prevailing in the relevant foreign exchange market (as determined by the Company in its absolute discretion) on the relevant date.
13. Liability and Indemnity
13.1The Company will use all reasonable endeavors to perform its obligations under this Agreement. Neither the Company nor any of its directors, officers, employees or agents (save where it has been established that they or any of them have acted fraudulently or in willful default) shall have any liability whatsoever (whether in contract, tort or otherwise) for any loss, expenses or damages suffered by the Client arising directly or indirectly from any act, omission, default, error or delay by the Company or any of its directors, officers, employees or agents (including any overseas broker or agent appointed by the Company) in the performance of their obligations under this Agreement, including but not limited to the following:
(i)Any inability, failure or delay on the part of the Company to comply with or carry out any Instruction or any ambiguity or defect in any Instruction; or
(ii)The Company in good faith acting or relying on any Instruction given by the Client, whether or not such instruction was given following any recommendation, advice or opinion given by the Company or any Associate or by any of its or their directors, officers, employees or agents; or
(iii)The Company failing to perform its obligations hereunder by reason of any event of force majeure beyond its control or the control of its employees or agents or system providers, including but not limited to any governmental or regulatory restriction, closure of or ruling by any Exchange (or any division thereof), suspension of trading, breakdown or failure of transmission or communication or computer facilities, postal or other strikes or similar industrial action, or the failure of any Exchange, Clearing House, Correspondent Agent or other person to perform its obligations; or
(iv)Any Exchange, Clearing House, Correspondent Agent or other person ceasing for any reason to recognize the existence or validity of Transactions entered into by the Company on behalf of the Client, or failing to perform or close out any such contract provided that such cessation or failure shall not affect the Client’s obligations hereunder in respect of any such contracts or other obligations or liabilities of the Client arising therefrom; or
(v)The mis-understanding or mis-interpretation of any Instruction given or placed verbally or electronically, or delays or errors in transmission owing to electronic traffic congestion or any other causes, or any mechanical failure, malfunction, suspension or termination of the continued operation or availability and mechanical failure or inadequacy of the Company’s telephone or telecommunication system or installation in connection with the receipt and processing of Instructions transmitted by telecommunication devices and all other related equipment, facilities and services.
13.2 The Company, its directors, officers, employees and agents will not be liable for any consequential or indirect loss including any loss of income, business, profit or saving.
13.3 The Client agrees to fully indemnify and keep indemnified (on a full indemnity basis) the Company, and its Associates and its Correspondent Agents, and Formax Group of Companies and their directors, officers, employees and agents („Indemnified Persons‟) against any loss, cost, claim, liability or expense, including but not limited to legal fees, that may be suffered or incurred by any and/or all of the Indemnified Persons, arising out of or in connection with any Transactions, or otherwise arising out of any action or omission by the Company in accordance with the terms of this Agreement, or arising out of any breach by the Client of any of its obligations under this Agreement, including, but not limited to:
(i)any costs reasonably incurred by the Company in collecting any debts due to the Company,
(ii)any unpaid shortfall on the Account
(iii)any costs related to enforcing the rights of the Company hereunder or in connection with the closure of the Account,
(iv)any penalty charged as a result of any Transaction to the Company by any Exchange and/or any Clearing House,
(v)any loss caused by the Company acting on instructions from an Authorized Person or a failure by an Authorized Person to comply with the terms of this Agreement;
(vi)any loss caused by unauthorized or incorrect Instructions or orders, and/or
(vii)any costs, .expenses (including legal fees on a full indemnity basis), losses, fines or other liabilities suffered or incurred by or on behalf of the Company or any member of the Formax Group of Companies as a result of any inquiry, proceeding or other matter conducted by the Financial Markets Authority or any equivalent regulator in any other jurisdiction, in relation to any Transaction undertaken by or on behalf of the Company pursuant to this Agreement.
14. Set- Off, Lien and Combination of Accounts
14.1 In addition and without prejudice to any general liens, rights of set-off or other similar rights to which the Company may be entitled under laws or this Agreement, all Securities, receivables, monies and other property of the Client (held by the Client either individually or jointly with others) held by or in the possession of the Company at any time shall be subject to a general lien in favour of the Company as continuing security to offset and discharge all of the Client’s obligations, arising from Transactions or otherwise, to the Company and its Associates.
14.2 In addition and without prejudice to any general liens or other similar rights which the Company may be entitled under law or this Agreement, the Company for itself and as agent for any of its Associates, at any time without notice to the Client, may combine or consolidate any or all Accounts of the Client, of any whatsoever and either individually or jointly with others, with the Company or any of its Associates and the Company may set off or transfer any monies, Securities or other property in any such Accounts to satisfy obligations or liabilities of the Client to the Company or any of its Associates, whether such obligations and liabilities are actual or contingent, primary or collateral, secured or unsecured, or joint or several, and whether or not such obligations and liabilities arise from the purchase and sale of securities by the Client on a cash-against-delivery basis.
14.3 Without limiting or modifying the general provisions of this Agreement, the Company may, without notice, transfer any assets between any Accounts and any other accounts of its Associates in accordance with applicable laws, rules and regulations, and the Client agrees to that the Company has such rights of transfer mentioned above at all times. The Client irrevocably agrees to promptly and unconditionally sign any further and additional documents (as may be required by the Company from time to time) to perfect the Company’s rights mentioned above whenever necessary.
15. Joint and Several Liability/ Successors
15.1 Where the Client comprises two or more individuals:
(i)Each such individual shall be jointly and severally liable for all obligations under this Agreement;
(ii)The Company may accept Instructions from, give receipts to and for all purposes deal with any one of such individuals without notice to the other individual and the Company is not responsible for determining the purposes or propriety of an Instruction the Company receives from any such individual or for the disposition of payments or deliveries among such individuals. The Company reserves the right to require written Instructions from all such individuals at its discretion;
(iii)Any delivery of payments or Securities to any one of such individuals shall be a valid and complete discharge of the Company’s obligations to each individual regardless of whether such delivery are made before or after the death of any one of more of such individuals;
(iv)Any notices and communications sent to one such individual will be deemed notice to all individuals holding the Account;
(v)On the death of any of such individual (being survived by any other such individual), this Agreement shall not be terminated ad the interest in the Account of the deceased will thereupon vest in and ensure for the benefit of the survivor(s) provided that any liabilities incurred by the deceased Client shall also be enforceable by the Company against such deceased Client’s estate. The surviving Client(s) shall give the Company written notice immediately upon any of them becoming aware of any such death.
15.2 This Agreement shall be binding on the Client’s heirs, executors, administrators, personal representatives, successors and assigns, as the case may be.
16. Transaction Confirmations and Statements
16.1 The Company will report to the Client executions of Transactions (i) promptly by telephone calls, electronic means or facsimile or other means as agreed and/ or (ii) by sending to the Client a copy of the Transaction confirmation and account statement within two Business Days of the execution of the Transaction. The Company will send to the Client a monthly statement showing a Transaction summary for the month in accordance with the relevant law, regulations and rules, [or a six monthly statement if there have been no Transactions or any revenue or expense item in the Account during any particular month and the Account does not have any outstanding balance or holding of position or Securities.]
16.2 The Client shall have a duty to examine the Transaction confirmation, and the monthly [or six-monthly] statement carefully and to notify the Company in writing of any alleged error or irregularity therein within 3 Business Days or such other period of time as may be specified by the Company generally or in any particular case, after the date of dispatch of such confirmation or statement. The Client agrees that the Company is not liable for any market fluctuations or damages resulting from any delay in reporting an error to the Company. Otherwise, in the absence of a manifest error, the Transaction confirmation, monthly [or six-monthly] statement shall be conclusive and the Client shall be deemed to have waived any such error and the Company will be released from all claims by the Client in connection with the Transaction confirmation, monthly [or six-monthly] statement or any action taken or not taken by the Company regarding the Account. In the case that there is an overpayment of money or Securities to the Account, the Client agrees to notify the Company as soon as it is aware of the overpayment and agrees not to remove (or if removed, to return) the money or Securities.
17. New Listing of Securities
17.1 In the event that the Client gives the Company an Instruction to apply for Securities in respect of a new listing and/or issue of Securities on the Exchange as its agent and for its benefit or for the benefit of any other person, the Client hereby grants the Company (and its agent or broker) the authority to make such application on the Client’s behalf.
17.2 The Client shall familiarize itself and comply with all the terms and conditions governing the Securities subject to the new listing and/or issue, the relevant prospectus and/or offering document and the application form or any other relevant document in respect of such new listing and/or issue, and the Client agrees to be bound by such terms and conditions.
17.3 The Client hereby authorizes the Company to give, on its behalf, all representations, warranties and undertakings which an applicant for Securities in a new listing and/or issue is required to give (whether to the issuer, sponsors, underwriters or placing agents of the relevant Securities, the Exchange or any other relevant regulator or person).
17.4 The Client hereby further declares and warrants, and authorizes the Company to disclose and warrant to the Exchange on any application form (or otherwise) and to any other person as appropriate, that any such application made by the Company as its agent is the only application made, and the only application intended to be made, by the Client or on the Client’s behalf, to benefit the Client or the person for whose benefit the Client is applying. The Client acknowledges and accepts that the aforesaid declaration and warranty will be relied upon by the Company and by the issuer, sponsors, underwriters or placing agents of the relevant Securities, the Exchange or any other relevant regulator or person in respect of any application made by the Company as the Client’s agent.
17.5 The Client recognizes and understands that the legal and regulatory requirements, and market practice, in respect of applications for Securities may vary from time to time as may the requirements of any particular new listing or issue of Securities. The Client undertakes to provide to the Company such information and take such additional steps and make such additional representations, warranties and undertakings as may be required in accordance with such legal and regulatory requirements, and market practice as the Company may in the Company’s absolute discretion determine from time to time.
17.6 In relation to a bulk application to be made by the Company or the Company’s agent on the Company’s own account and/or on behalf of the Client and/or the Company’s other clients, the Client acknowledges and agrees:
(i)That such bulk application may be rejected for reasons which are unrelated to the Client and the Client’s application and neither the Company nor the Company’s agent shall, in the absence of fraud, negligence or willful default, be liable to the Client or any other person in consequence of such rejection;
(ii)To indemnify the Company in accordance with Clause 13 if such bulk application is rejected either in circumstances where the Client is in breach of the relevant representations and warranties or otherwise because of factors relating to the Client. Notwithstanding Clause 5.4, in the event that the bulk application is only partially filled, the Client agrees that the Company is entitled to distribute the Securities allotted in its absolute discretion, including distributing the Securities equally between all clients of the Company under the bulk application. The Client shall not have any claim to the Securities, or claim of priority over another client of the Company, in relation to the application.
18. Representations and Warranties
The Client represents, warrants and undertakes to the Company as at the date of this Agreement and at the time each Transaction is entered into, that:
18.1 The information relating to the Client provided pursuant to this Agreement is true, accurate and complete and the Company is entitled to rely on such information until the Company has received notice in writing from the Client of any changes therein. The Client will notify the Company immediately in writing of any changes in such information; and
18.2 The Client has the authority and legal capacity to enter into and perform its obligations under this Agreement, including, where applicable, to instruct the Company to enter into Transactions and this Agreement constitutes a valid and legally binding obligations of the Client.
18.3 The Client is lawfully authorized to trade in Securities.
18.4 If the Client is an individual, the Client is of full age and sound mind and legally competent to enter into this Agreement.
18.5 If the Client is a company, body corporate or partnership, it is validly incorporated under the laws of the jurisdiction of its incorporation, and it has the necessary power and authority to enter into this Agreement and the person(s) signing this Agreement has the full power and authority to execute this Agreement on its behalf;
18.6 All authorizations necessary to be obtained by the Client prior to the execution of this Agreement have been obtained and in executing and in giving effect to this Agreement the Client does not, and in instructing the Company to enter into Transactions the Client will not, infringe any provision of any deed or other document or agreement to which it is a party.
18.7 No one except the Client has any interest in the Account (and no trust has been declared by the Client over all or any part of the Account) and, except as disclosed to and consented to in writing by the Company, the Client enters into each Transaction under this Agreement as principal and not as agent, trustee or otherwise.
18.8 The Account is not, nor is to become, subject to any mortgage, charge, lien, security interest or other encumbrance except as disclosed to and consented to in writing by the Company.
18.9 The Client has read and understood the Risk Disclosure Statements in Schedule 5 prior to executing this Agreement.
18.10 The Client has taken such independent legal and financial advice as it considers necessary prior to executing this Agreement.
18.11 No Event of Default has occurred or is continuing.
19. Risk Disclosure
The Client warrants and represents to the Company that it has read and understood the Risk Disclosure Statements contained in Schedule 5.
20. Notices and Communications
20.1 All notices, reports, statements, confirmations and other communications shall be in written or electronic form (if applicable) which may be personally delivered or transmitted by post, facsimile or electronic mail, if to the Client, at the address, facsimile number or electronic mail address given in the Account Opening Form or at such other address, facsimile number or electronic mail address as shall be designated by the Client in a written notice to the Company; and if to the Company, at its address at such office of the Company as the Company may from time to time select and notify to the Client.
20.2 All such notices, reports, statements, confirmations and other communications shall be deemed to have been duly served:
(i)At the time of delivery or transmission, if delivered personally, by facsimile or by electronic mail; or
(ii)2 Business Days after the date of posting, if sent by local mail; or
(iii)5 Business Days after the date of posting, if sent by overseas mail.
The Client agrees that the Company may amend the terms of this Agreement by giving the Client reasonable notice of the changes in writing at any time. Any amendment to this Agreement shall take effect on expiry of such notice period and the Client will be deemed to have accepted the amendment if it does not terminate the Agreement.
The Client agrees that the Company may transfer its rights and obligations under this Agreement to any third party without the prior consent of the Client. The rights and obligations of the Client under this Agreement may not be assigned without the Company’s prior written consent.
23. You agree and acknowledge as follows:
a The Company does not give you financial advice of any kind nor offer any opinion or recommendation regarding the nature, potential value or suitability of any particular Transaction or any future Transaction;
b To the maximum extent allowed or permitted by law, the Company disclaims all responsibility or liability for any expenses, loss, or damages, including but not limited to direct or indirect consequential loss or damage, which may be suffered by any person who rely upon any information, conclusion, opinion or recommendations provided by the Company irrespective of whether any loss or damage is caused by the Company’s fault or negligence or otherwise;
c Investment involves risks. You should make your own decision as to; (i) the risk acceptance level in respect of any investment or Securities, and (ii) whether any investment will meet your own investment needs;
d The availability of any information, documents or reports through the Company’s website or other channels, does not constitute any recommendation to buy, sell or hold any Securities or investments;
e You will make your own evaluation of your financial circumstances and financial objectives while you make any investment decisions, and you have provided us accurate and complete information in the Account Opening Form and promptly inform the Company in writing of any changes;
f You authorize the Company to collect any personal data or other information from you, from time to time, and send such information to its Associates or members of Formax Group of Companies for the purpose of providing you any financial service relating to this Agreement or related services.
g You agree that the Company may send you mail or electronic communications regarding products or services of the Company and any of its Affiliates or designated third parties for the purposes of providing services, and direct marketing relating to financial services. If you decide to opt out direct marketing, you can do so in the Account Opening Form.
24. You understand and accept
You understand and accept that the attached Schedules form part of this Agreement, including the Account Opening Form (Schedule 1), the Privacy Statement (Schedule 2), U.S. Foreign Account Tax Compliance Act (“FATCA”) and tax related matters (Schedule 3), the Online Trading Agreement, (Schedule 4), the Risk Disclosure Statements (Schedule 5) and the Margin Client Agreement (Schedule 6).
25. Governing Law
This Agreement shall be governed by New Zealand law. You agree to submit to the non- exclusive jurisdiction of the Courts of New Zealand.
26.1 If any provision of this Agreement is held to be invalid, illegal or unenforceable, it shall be severed from this Agreement, and the remaining provisions of this Agreement will remain in full force and effect.
If any term of this Agreement is inconsistent with any present or future law, rule or regulation applicable to the Company, the Exchange or the Clearing House, such provision shall be deemed to be rescinded or modified in accordance with any such law, rule or regulation. In all other respects, this Agreement shall continue and remain in full force and effect.
26.2 Time shall in all respects be of essence in the performance of all of the Client’s obligations under this Agreement.
26.3 A failure or delay in exercising any right, power or privilege in respect of this Agreement by the Company will not be resumed to operate as a waiver, and a single or partial exercise of any right, power or privilege will not be presumed to preclude any subsequent or future exercise of that right, power or privilege.
26.4 In the event of any difference in the interpretation or meaning between the Chinese and English versions of this Agreement, the Client and the Company agree that the English version shall prevail.
26.5 The Client understands that the Company does not provide any services or products to U.S. Persons (including but not limited to citizens or residents of the United States and all such U.S. persons as defined or referred under the U.S. Foreign Account Tax Compliance Act (FATCA) or under any other U.S. laws or regulations) and/or U.S. Indicia. A person is treated as having U.S. Indicia if any of the following information is identified: (i) designation or classification of the Account holder as a U.S. citizen or resident, (ii) a U.S. place of birth, (iii) a current U.S. residential address or U.S. mailing corresponding address, including a U.S. post office box, (iv) a current U.S. telephone number regardless of whether such number is the only telephone number associated with the Client, (v) standing instructions to pay amount the account to an account maintained in the U.S. or to a U.S. address, (vi) a current power of attorney or signatory authority granted to a person with a U.S. address, or (vii) an “in-care-of” address or a “hold mail” address that is the sole address with respect to the Client). The Company shall have the right to terminate the Account and the Agreement with any person who becomes a U.S. Person or gains U.S. Indicia.
26.6 The Client agrees to provide to the Company any documents (including but not limited to IRS Form W-8) as may be requested by the Company, from time to time, to support the Client’s status as a non-U.S. Person and without any U.S. Indicia. If the Client’s status changes to that of a U.S. person or having U.S. Indicia, the Client shall notify the Company within 30 days of that change, and the Client agrees to promptly provide to the Company with an IRS Form W-9 and any other document as may be requested by the Company, from time to time.
26.7 No matter whether the Client is an individual, a corporation, partnership or any form of entity, the Client shall comply with all disclosure requirements imposed or to be imposed by the Company from time to time, and promptly provide any additional documents as may be requested by the Company.
26.8 The Client agrees that the Company shall have the right to cease to provide any services to the Client under this Agreement (at the Company’s sole and absolute discretion) if the Client fails to provide to the Company the required information or documents, in accordance with its request from time to time.
Account Opening Form
Client Information Form (Individual/Joint Account)
This Statement is provided to the Client as an individual Client of the Company relating to personal data privacy. Terms defined in this statement have the same meaning as in the Agreement.
1. Disclosure Obligation
The Client must supply the personal data requested on the enclosed Account Opening Form to the Company. If the Client does not supply this data, it will not be possible for the Client to open an Account with the Company as the Company will not have sufficient information to verify the Client’s identity and to open and administer the Account.
2. Use of Personal Data
All personal data concerning the Client (whether provided by the Client or any other person, and whether provided before or after the date of the Agreement) may be used by any of the following companies or persons (each, a „User‟):
i.The Company and any member of the Formax Group of Companies;
ii.Any director, officer, or employee or agent of the Formax Group of Companies;
iii.Any person (such as lawyers, advisers, nominees, custodians, brokers, agents etc.) authorized by any member of the Formax Group of Companies when carrying out the Client’s Instructions and/or the business of the Formax Group of Companies;
iv.Any actual or proposed assignee of any rights and obligations of the Formax Group of Companies in relation to the Client; and
v.Any governmental or regulatory authority, or other bodies or institutions, as required by law or regulations applicable to any member of the Formax Group of Companies.
All personal data concerning the Client may be used by any User for the following purposes:
i.Carrying out new or existing client identity verification and credit checking procedures, and assisting other financial institutions to do so;
ii.Ongoing Account administration, including the collection of amounts due, enforcement of security, charge or other rights and interests;
iii.Offering new products and services or marketing a Formax Group of Companies product to the Client;
iv.Providing the services to the Client under this Agreement or under any other Agreement between the Client and any member of the Formax Group of Companies;
v.Any purpose relating to or in connection with compliance by any member of the Formax Group of Companies with any law, regulation, court order or order of any regulatory body; any guidelines, guidance or requests given or issued by any legal, regulatory, governmental, tax, law enforcement or other authorities, or self-regulatory or industry bodies or associations of financial services providers within or outside New Zealand existing currently and in the future and any international guidance, internal policies or procedures;
vi.Any purpose relating to the execution of the Client’s Instructions;
vii.collecting information and conducting any action to meet obligations of the Company or any member of Formax Group of Companies to comply with laws or international guidance or regulatory requests relating to or in connection with the detection, investigation and prevention of money laundering, terrorist financing, bribery, corruption, tax evasion, fraud, evasion of economic or trade sanctions and/or any acts or attempts to circumvent or violate any laws relating to these matters, including but not limited to FATCA;
2.3 The Client consents to the collection, retention and use of its personal data for the above purposes.
2.4 Transfer of Data and Recipients of Data
The Client agrees that the Company may transfer the Client’s personal data for the above purposes to the following recipients:
i.any agents, contractors, sub- contractors, service providers or Associates of Formax Group of Companies (including their employees, directors, officers, agents, contractors, service providers, and professional advisers);
ii.any third party service provider who provides administrative, telecommunications, computer, payment or securities clearing or other services to the Company and Formax Group of Companies in connection with the operation of their business (including their employees, directors, officers and agents);
iii.any regulatory, governmental or tax authorities;
iv.the drawee bank providing a copy of a paid cheque (which may contain information about the payee) to the drawer;
v.any persons acting on behalf the Client such as payment recipients, beneficiaries, account nominees, intermediary, correspondent and agent banks, Clearing Houses, clearing or settlement systems, market counterparties, upstream withholding agents, swap or trade repositories, Exchanges, companies in which the Client has an interest in Securities (where such securities are held by the Company or any member of the Formax Group of Companies) or a person making any payment into the Client’s account;
vi.credit reference agencies, and, in the event of default, to debt collection agencies;
vii.any person to whom the Company or any member of Formax Group of Companies is under an obligation or required or expected to make disclosure for the purposes of this Agreement;
viii.any actual or proposed assignee or agent of the Company or participant or sub- participant or transferee of the Company’s rights in respect of the Customer; and
ix.any member of the Formax Group of Companies;
x.third party financial institutions, insurers, credit card companies, securities and investment services providers; third party reward, loyalty, co-branding and privilege programme providers;
xi.The Client agrees that the Client’s personal data may be transferred to a place outside New Zealand
2.5 The Client
Rights of Access and Correction
The Client has the right to have access to and request correction of the Client’s personal data held by the Company as set out in this Agreement. In general, and subject to certain exemptions, the Client is entitled to:
i.Enquire whether the Company holds personal data in relation to the Client;
ii.Request access to the Client’s personal data within a reasonable time, at a reasonable fee, in a reasonable manner and in a fom that is intelligible;
iii.Request the correction of the Client’s personal data; and
iv.Be given reasons if a request for access or correction is refused, and object to any such refusal.
If the Client wishes to request access to and/or correction of personal data concerning the Client, the Client should address the Client’s request to the Data Protection Officer at the Company.
U. S. Foreign Account Tax Compliance Act ( “FATCA”) and tax related matters
FATCA is United States law. It aims to reduce tax evasion by U.S. citizens and residents living outside the United States and other U.S. entities.
Under FATCA, certain foreign financial institutions are required to comply with FATCA requirements in order to avoid imposition of a 30 per cent United States withholding tax on U.S. sourced income.
The Company may need to provide information on Accounts to the Inland Revenue Department (IRD) or the US Tax authority, the Internal Revenue Service (IRS) and/or tax authorities of other jurisdictions relating to tax compliance.
The Client agrees to provide the Company with any additional information where such information is required for the Company to comply with any laws in New Zealand or overseas or to help the Company to decide what it will need to do to comply with the law in New Zealand or overseas. You also agree that the Company may provide your personal information to the IRD or the IRS or any other a New Zealand or international revenue or taxation service (or other government authority) to help the Company to comply with laws in New Zealand or overseas.
If you are a U.S. citizen or U.S. tax resident and your investment meets certain criteria, the Company is obliged to inform the IRD of your investment. In this situation you may be liable for additional tax in the U.S. We recommend you consult your own independent tax adviser for further information.
Online Trading Agreement
This Online Trading Agreement is supplemental to the Agreement entered into by the Company and the Client. Under this Online Trading Agreement the Company agrees to provide to the Client Electronic Services which enable the Client to give electronic Instructions and to obtain quotations and other information via computer or telephonic transmission for use on compatible personal, home or small business computers, including internet appliance with modems, terminals or network computers that can connect to a telecommunication network („Electronic Services‟). Where any conflict arises between the Agreement and the provisions of this Online Trading Agreement, the provisions of the latter shall prevail.
1.1Terms defined in this Online Trading Agreement have the same meanings as in the Agreement unless stated otherwise.
1.2The following expressions shall, unless the context requires otherwise, have the following meanings:
“Login ID” means the Client’s identification, used in conjunction with the Password, to gain access to the Electronic Services;
“Information” means any transaction or market data, bid and ask quotations, news reports, third party analysts‟ reports, research and other information relating to Securities and the Securities markets;
“Password” means the Client’s password, used in conjunction with the Login ID, to gain access to the Electronic Services.
1.3References to „Instructions‟ in the Agreement are deemed to include electronic instructions given by means of the Electronic Services.
1.4. Transaction confirmations and statements and notices and communications referred to in Clauses 16 and 20 of the Agreement respectively may be sent solely by means of Electronic Services if the Client so consents and such consent can be given initially as indicated in the Account Opening Form or subsequently by Electronic Services.Notices and communications delivered by Electronic Services shall be deemed to have been duly delivered at the time of transmission.
2. Using Electronic Services
2.1On the issuance by the Company to the Client of its Login ID and Password, the Electronic Services shall be activated and the Company shall notify the Client.
2.2The Company is entitled to require the Client to place a cash and/or Securities deposit prior to execution of any Instructions as informed by the Company to the Client from time to time.
2.3The Client agrees:
i.That it shall use the Electronic Services only in accordance with this Online Trading Agreement, the Agreement and the instructions and procedures as set out in the Company’s Instruction Manual which is supplied to the Client from time to time;
ii.That it shall be the only authorized user of the Electronic Services;
iii.That it shall be responsible for the confidentiality and use of its Login ID and Password.
iv.That it shall be solely responsible for all Instructions entered through the Electronic Services using its Login ID and Password and any Instructions so received by the Company shall be deemed to be made by the Client at the time received by the Company and in the form received;
v.That it shall immediately inform the Company if it becomes aware of any loss, theft or unauthorized use of its Login ID or Password;
vi.That the Company has the right to suspend the Electronic Services if an incorrect Login ID and Password are entered on more than 3 occasions;
vii.To provide the Company with the Client’s e-mail address, and promptly provide the Company with any changes to the Client’s e-mail address, and to accept electronic communications from the Company at the e-mail address the Client has specified;
viii.That the Company may in its absolute discretion impose restrictions on the types of orders, and the range of prices for orders which can be placed through the Electronic Services;
ix.That the Client agrees to pay all subscription, service and user fees, if any, that the Company charges for the Electronic Services and authorises the Company to debit the Client’s Account with the same;
x.That it shall be bound by any consent the Client gives through the Electronic Services for the Company to provide any notices, statements, Transaction confirmations and other communications to the Client solely through Electronic Services; and
xi.That it shall logoff the Electronic Services immediately following the completion of each Electronic Services session.
2.4After giving an Instruction via the Electronic Services, the Client shall check via the Electronic Services that its Instruction has been correctly acknowledged by the Company.
2.5Without limiting the generality of the foregoing, the Client acknowledges and agrees that it may not be possible to amend or cancel an Instruction after it has been given through the Electronic Services and that an Instruction may only be amended or cancelled if it has not been executed by the Company. In such circumstances the Company will use its best efforts to amend or cancel the Instruction but, notwithstanding an acknowledgement by the Company in relation to the amendment or cancellation, there is no guarantee that the amendment or cancellation will occur. If the amendment or cancellation does not occur, the Client shall remain liable for the original Instruction.
2.6In the case the Electronic Services is not available, the Client shall place its Instructions in accordance with Clause 4.1 of the Agreement.
3. Provision of Information
3.1The Company may convey Information to the Client by Electronic Services. The Client may be charged a fee for Information the Company provides that has been obtained from Exchanges, markets and from other third-parties that transmit Information (collectively referred to as the „Information Providers‟).
3.2The Information is the property of the Company, the Information Providers or other relevant third party providers and is protected by copyright. The Client shall not use the Information or any part thereof other than for its own use or in the ordinary course of its own business.
3.3The Client agrees not to:
i.Reproduce, retransmit, disseminate, sell, distribute, publish, broadcast, circulate or commercially exploit the Information in any manner without the express written consent of the Company and the relevant Information Provider(s);
ii.Use the Information for any unlawful purpose;
iii. Use the Information or any part thereof to establish, maintain or provide or to assist in establishing, maintaining or providing a trading floor or dealing service for trading in Securities.
3.4The Client agrees to comply with any reasonable written requests by the Company to protect the Information Providers’ and the Company’s respective rights in the Information and the Electronic Services.
3.5The Client shall comply with any reasonable directions of the Company from time to time concerning the permitted use of the Information.
3.6The Client authorizes the Company to provide information on the Electronic Services supplied to the Client hereunder to the Stock Exchange Information Service Limited („SEIS‟) to enable the Company to comply with the licence agreement between SEIS and the Company relating to market data feeds.
4.Intellectual Property Rights
The Client acknowledges that the Electronic Services, and any software comprised in it, is proprietary to the Company. The Client warrants and undertakes that it shall not, and shall not attempt to, tamper with, modify, decompile, reverse engineer or otherwise alter in any way, and shall not attempt to gain unauthorized access to, any part of the Electronic Services or any of the software comprised in it. The Client agrees that the Company shall be entitled to terminate this Online Trading Agreement if at any time the Client breaches, or if the Company at any time reasonably suspects that the Client has breached, this warranty and undertaking.
5. Limitation of Liability and Indemnification
5.1The Company, it’s Correspondent Agents and the Information Providers shall not be responsible for any losses, costs, expenses or liabilities suffered by the Client resulting from circumstances beyond their reasonable control including, without limitation:
i.Delays, failure or inaccuracies in transmission of communications to or from the Company through telephone, electronic or other systems that are not under their control;
ii.Delays, inaccuracies or omissions in or unavailability of any Information prepared by Information Providers;
iii.Unauthorized access to communications systems, including unauthorized use of the Client’s Login ID, Password and/or account numbers; and
iv.War or military action, government restrictions, labour disputes or closure of or disruption to orderly trading on any market or exchange, severe weather conditions and acts of god.
5.2The Client agrees to defend, indemnify and hold the Company, its Corresponding Agents and the Information Providers harmless from and against any and all claims, losses, liability, costs and expenses (including but not limited to attorney’s fees) arising from the Client’s violation of the Agreement or this Online Trading Agreement, any applicable securities laws or regulations, or any third party’s rights, including but not limited to infringement of any copyright, violation of any proprietary right and invasion of any privacy rights. This obligation will survive the termination of the Agreement or this Online Trading Agreement.
5.3The Client accepts that while the Company endeavours to ensure the accuracy and reliability of the Information provided, the Company does not make or give any representation, warranty or guarantee, express or implied, as to, and shall not be responsible for, the accuracy or completeness of any Information communicated to the Client via the Electronic Services or by any of its officers, directors, employees, Associates, partners, agents or representatives and accepts no liability (whether in tort, contract or otherwise) for any loss or damage from any inaccuracies or omission.
6. Termination of Electronic Services
6.1The Company reserves the right to terminate the Client’s access to the Electronic Services or any portion of them in its sole discretion, without notice and without limitation, for any reason whatsoever, including but not limited to the unauthorized use of the Client’s Login ID, Password and/or account number(s), breach of this Online Trading Agreement or the Agreement, discontinuance of the Company’s access to any Information from any Information Provider or termination of one or more agreements between the Company and Information Providers.
6.2In the event of termination by the Company, the Information Providers, and the Company shall have no liability to the Client; provided, however, that if the termination is without cause the Company will refund the pro rata portion of any fee that may have been paid by the Client for the portion of the Electronic Services not furnished to the Client as of the date of such termination.
7 Risk Disclosure
The Company refers the Client to the Risk Disclosure Statements contained in Schedule 5.
In the event of any dispute between the parties, the Client agrees that the records of the Company (including electronic records) shall prevail.
The Company may change the terms in this Online Trading Agreement from time to time by giving the Client reasonable notice in writing or via Electronic Services.
Risk Disclosure Statement
This risk disclosure statement is provided to you as an investor for general information purposes in order to assist your understanding of the potential risks involved in undertaking transactions in Securities, warrants, foreign exchange, margin trading, derivative instruments and other types of investments. This statement cannot disclose all the risks and other significant aspects of investing in Securities, warrants, foreign exchange, margin trading or transactions in derivatives.. You should not deal in these and other investment products unless you understand their nature and the extent of your exposure to risk and financial loss. You should also be satisfied that the product is suitable for you in light of your circumstances, financial position, investment objectives and tolerance for risk. You are cautioned to carefully note the risk factors contained in the relevant [investment, warrants, margin trading, derivative instrument or other product] offer documents (if any) and to seek appropriate advice before making a decision to invest or trade in these products. Different investments involve different levels of risk and in deciding whether to trade in such instruments you should be aware of the points below.
General Investment Risk
All investment in Securities and the trading of Securities entails risk. You should take time to understand and be aware of the risks of particular investments or investment strategies. The price, value and income derived from investments may fluctuate in that values can go down as well as up and investors may get back less than originally invested (possibly a total loss of capital). The risk of loss may occur by reason of movements in the market generally. These can be caused by a number of factors including political, economic, taxation or legislative factors.
Past performance is no guarantee or indication of future results, and undue reliance should not be placed on past performance or anticipated future performance.
Exchange rate fluctuations may have adverse effect on the value, price or income of investments.
You must make your own investment decisions in light of your investment objectives, risk profile, and circumstances and seek advice as may be necessary.
A warrant is a time-limited right to subscribe for shares, debentures, loan stock or government Securities and is exercisable against the original issuer of the underlying Securities. A relatively small movement in the price of the underlying Security results in a disproportionately large movement, favourable or unfavourable, in the price of the warrant. The prices of warrants can therefore be volatile. It is essential for anyone who is considering purchasing warrants to understand that the right to subscribe which a warrant confers is invariably limited in time with the consequence that if the investor fails to exercise this right within the pre-determined time-scale then the investment becomes worthless. You should not buy a warrant unless you are prepared to sustain a total loss of the money you have invested plus any commission or other transaction charges. Although warrants can be utilised for the management of investment risk, warrants are unsuitable for many investors.
Some other instruments are also called warrants but are actually options (for example, a right to acquire securities which is exercisable against someone other than the original issuer of the securities, often called a 'covered warrant').
Transactions in futures involve the obligation to make, or to take, delivery of the underlying asset of the contract at a future date, or in some cases to settle the position with cash. They carry a high degree of risk. The 'gearing' or 'leverage' often obtainable in futures trading means that a small deposit or down payment can lead to large losses as well as gains. It also means that a relatively small movement can lead to a proportionately much larger movement in the value of your investment, and this can work against you as well as for you.
There are many different types of options with different characteristics subject to the following conditions.
Buying options: Buying options involves less risk than selling options because, if the price of the underlying asset moves against you, you can simply allow the option to lapse. The maximum loss is limited to the premium, plus any commission or other transaction charges. However, if you buy a call option on a futures contract and you later exercise the option, you will acquire the future. This will expose you to the risks described under 'futures' and 'contingent liability transactions'.
Writing options: If you write an option, the risk involved in considerably greater than buying options. You may be liable for margin to maintain your position and a loss may be sustained well in excess of the premium received. By writing an option, you accept a legal obligation to purchase or sell the underlying asset if the option is exercised against you, however far the market price has moved away from the exercise price. If you already own the underlying asset which you have contracted to sell (known as 'covered call options') the risk is reduced. If you do not own the underlying asset (known as 'uncovered call options') the risk can be unlimited. Only experienced persons should contemplate writing uncovered options, and then only after securing full details of the applicable conditions and potential risk exposure.
Certain options markets operate on a margined basis, under which buyers do not pay the full premium on their option at the time they purchase it. In this situation you may subsequently be called upon to pay margin on the option up to the level of your premium. If you fail to do so as required, your position may be closed or liquidated in the same way as a futures position.
Contracts for Differences
Futures and options contracts can also be referred to as a contract for differences. These can be options and futures on a market index, as well as currency and interest rate swaps. However, unlike other futures and options, these contracts can only be settled in cash. Investing in a contract for differences carries the same risks as investing in a future or an option. Transactions in contracts for differences may also have a contingent liability.
Contingent Liability Transactions
Contingent liability transactions, which are margined, require you to make a series of payments against the purchase price, instead of paying the whole purchase price immediately.
If you trade in futures, contracts for differences or sell options you may sustain a total loss of the margin you deposit with the Company to establish or maintain a position. If the market moves against you, you may be called upon to pay substantial additional margin at short notice to maintain the position. If you fail to do so within the time required, your position may be liquidated at a loss and you will be responsible for the resulting deficit.
Even if a transaction is not margined, it may still carry an obligation to make further payments in certain circumstances over and above any amount paid when you entered the contract.
The Company may only carry out margined or contingent liability transactions for you if they are traded on or under the rules of a recognised or designated Exchange. Contingent liability transactions which are not so traded may expose you to substantially greater risk.
If you deposit Collateral as security with the Company, the way in which it will be treated will vary according to the type of Transaction and where it is traded. There could be significant differences in the treatment of your Collateral depending on whether you are trading on a recognised or designated investment Exchange, with the rules of that Exchange (and the associated Clearing House) applying, or trading off Exchange. Deposited Collateral may lose its identity as your property once deals on your behalf are undertaken. Even if your dealings should ultimately prove profitable, you may not get back the same assets, which you deposited and may have to accept payment in cash.
Before you begin to trade; you should obtain details of all commissions and other charges for which you will be liable. If any charges are not expressed in money terms (but, for example, as a percentage of contract value), you should obtain a clear and written explanation, including appropriate examples, to establish what such charges are likely to mean in specific monetary terms. In the case of futures, when commission is charged as a percentage, it will normally be as a percentage of the total contract value, and not simply as a percentage of your initial payment.
Suspensions of Trading
Under certain trading conditions it may be difficult to impossible to liquidate a position. This may occur, for example, at times of rapid price movement if the price rises or falls in one trading session to such an extent that under the rules of the relevant Exchange trading is suspended or restricted. Placing a stop-loss order will not necessarily limit your losses to the intended amounts, because market conditions may make it impossible to execute such an order at the stipulated price.
Clearing House Protections
On many Exchanges, the performance of a transaction by the Company (or third parties with whom the Company is dealing on your behalf) is 'guaranteed' by the Exchange or Clearing House. However, this guarantee is unlikely in most circumstances to cover you, the customer, and may not protect you if the Company or another party defaults on its obligations to you. There is normally no Clearing House for off-exchange instruments which are not traded under the rules of a recognized or designated investment Exchange.
Liquidation of Position
Positions may be liquidated or closed out without your consent in the event you fail to meet a margin call. Additionally, the insolvency or default of any broker involved in your Transaction may lead to positions being liquidated or closed out without your consent. In certain circumstances, you may not get back the actual assets which you lodged as Collateral and you may have to accept any available payment in cash
Insolvency of or default by the Company, or that of any other brokers involved with your Transaction, may lead to positions being liquidated or closed out without your consent. In certain circumstances, you may not get back the actual assets which you lodged as Collateral and you may have to accept any available payments in cash.
Non-readily Realizable Investments
Transactions in non-readily realizable investments or complex investments entail a high degree of investment risk. You may have difficulty selling these investments at a reasonable price and in some circumstances it may be difficult to sell at any price. Do not invest in these unless you have carefully thought about whether you can afford to and whether they are right for you.
Risk of Client Assets Received or Held Outside New Zealand
Client assets received or held by the Company outside New Zealand are subject to the applicable laws and regulations of the relevant overseas jurisdiction which may be different from the securities regulations in New Zealand or your home jurisdiction and the rules made thereunder. Consequently, such Client assets may not enjoy the same protection as that conferred on Client assets received or held in New Zealand or your home jurisdiction.
Risk of using the Electronic Services under the On-line Trading Agreement
(a)If you undertake Transactions via Electronic Services, you will be exposed to risks associated with the Electronic Services system including the failure of hardware and software, and the result of any system failure may be that your order is either not executed according to your Instructions or is not executed at all;
(b)Due to unpredictable traffic congestion and other reasons, Electronic Services may not be reliable and Transactions conducted via Electronic Services may be subject to delays in transmission and receipt of your Instructions or other Information, delays in execution or execution of your Instructions at prices different from those prevailing at the time your Instructions were given, transmission interruption or blackout. There are risks of misunderstanding or errors in communication, and that there is also usually not possible to cancel an Instruction after it has been given. The Company accepts no responsibility for any loss which may be incurred by the Client as a result of such interruptions or delays or access by third parties. You should not place any Instruction with us via Electronic Services if you are not prepared to accept the risk of such interruptions or delays; and
(c)Market data and other information made available to the Client through our Electronic Service may be obtained by the Company from third parties. While the Company believes such market data or information to be reliable, neither the Company nor such third parties guarantees the accuracy, completeness or timeliness of any such market data or information.
Risk of Providing an Authority to Repledge Your Securities Collateral Etc.
There is risk if you provide the Company with an authority that allows it to apply your Securities or Securities Collateral pursuant to a securities borrowing and lending agreement, repledge your securities Collateral for financial accommodation or deposit your securities Collateral as Collateral for the discharge and satisfaction of its settlement obligations and liabilities.
If you sign one of these authorities and your Securities or Securities Collateral are lent to or deposited with third parties, those third parties will have a lien or charge on your Securities or Securities Collateral. Although the Company is responsible to you for Securities or Securities Collateral lent or deposited under your authority, a default by it could result in the loss of your securities or securities Collateral.
Generally, the Company’s policy is only to provide a cash account not involving securities borrowing, and not involving margin trading.
Risk of Margin Trading
Margin trading is borrowing money from a margin product provider to buy shares and using your investment as Collateral. The risk of loss in financing a transaction by deposit of Collateral is significant. You may sustain losses in excess of your cash and any other assets deposited as Collateral with the Company. Market conditions may make it impossible to execute contingent orders, such as „stop-loss‟ or „stop-limit‟ orders. You may be called upon at short notice to make additional margin deposits or interest payments. If the required margin deposits or interest payments are not made within the prescribed time, your Collateral may be liquidated without your consent.
Moreover, you will remain liable for any resulting deficit in your account and interest charged on your account.
Margin trading represents a high degree of risk and is not suitable for everyone. Before undertaking transactions using a margin trading facility, you should fully understand that:
•You can lose more money than you have invested;
•You may have to deposit additional cash or Securities in your account on short notice to cover market losses;
•You may be forced to sell some or all of your Securities when falling share prices reduce the value of your Securities; and
•The margin trading product provider may be able to sell some or all of your Securities without consulting you to pay off the loan it made to you.
Be aware of the costs you will be charged on money you borrow from the margin trading product provider and how these costs affect your overall return.
You can protect yourself by knowing how margin trading works and what happens if the price of the shares purchased on margin declines. Know that you are charged interest for borrowing money and how that will affect the total return on your investments.
Risk of Trading of foreign securities, including B Shares listed on an Exchange in the People’s Republic of China
You should only undertake trading of foreign securities on foreign markets if you understand the nature of foreign securities trading and the extent of your exposure to risks. Investors are not protected by any investor compensation fund. The potential for profit or loss from transactions on foreign markets or in foreign denominated contracts will be affected by fluctuations in foreign exchange rates. You should carefully consider whether such trading is appropriate for you in light of your experience, risk profile and other relevant circumstances and seek independent professional advice if you are in doubt.
Margin Client Agreement
This Margin Client Agreement is supplemental to the Agreement entered into by the Company and the Client. Under this Margin Client Agreement, the Client is allowed to conduct margin trading on the Client’s Account („Margin Account‟) and the Company agrees to grant credit facilities (“Facility”) to the Client at the Client’s request for the Client’s Transactions. Where any conflict arises between the Agreement and the provisions of this Margin Client Agreement, the provisions of the latter shall prevail.
1.1Terms defined in the Agreement have the same meanings where used in this Margin Client Agreement, unless stated otherwise.
1.2References to „Account‟ in the Agreement are deemed to include the Margin Account as established pursuant to this Margin Client Agreement.
1.3“Credit Limit” is the maximum amount of Facility that the Company will grant the Client irrespective of the amount of the Client’s Collateral and Margin Ratio, [as notified by the Company to the Client from time to time].
1.4“Margin Ratio” is the percentage of the value of the Collateral up to which the Client is permitted to borrow (or otherwise to secure other forms of financial accommodation) from the Company against the Collateral, as notified by the Company to the Client from time to time.
“PPSA” is the Personal Property Securities Act 1999.
2 Margin Facility
2.1The Facility is extended to the Client in accordance with the provisions set out in this Margin Client Agreement, the fees and charges sheet provided by the Company to the Client and the Agreement (collectively called “Margin Facility Terms”). The Client agrees to use the Facility only in connection with the acquisition and holding of Securities [other than New Zealand Securities] by the Company for the Client.
2.2Subject to Clause 2.4 below, the Company grants to the Client the Facility up to the Credit Limit. The Credit Limit and the Margin Ratio may be varied by the Company at any time by notice to the Client. Notwithstanding the Credit Limit notified to the Client, the Company may at its discretion extend the Facility to the Client in excess of the Credit Limit and the Client agrees that the Client shall be liable to repay the full amount of any Facility given by the Company in accordance with Clause 6.1.
2.3 The Company is instructed and authorized by the Client to draw on the Facility to settle any amounts due to the Company or its Associates in respect of the Client’s purchase of Securities, margin maintenance obligations for any positions required by the Company or its Associates, or payment of any commission or other costs and expenses owing to the Company or its Associates.
2.4 The Company will not at any time be obliged to provide any advance to the Client under the Facility. In particular, the Client understands that the Company may not provide any advance to the Client under the Facility if any of the following circumstances should arise:
i.The Client is in default of any provisions of the Agreement; or
ii.In the opinion of the Company there is or has been a material adverse change in the Client’s financial condition or in the financial condition of any person which might adversely affect the Client’s ability to discharge the Client’s liabilities or perform the Client’s obligations under the Agreement; or
iii.Making an advance would cause the applicable Credit Limit or Margin Ratio to be exceeded; or
iv.The Company in its absolute discretion considers it prudent or desirable for its protection not to do so.
2.5For so long as there exists any indebtedness to the Company on the Client’s part, the Company shall be entitled at any time and from time to time to refuse any withdrawal of any or all of the Collateral and the Client shall not without the prior written consent of the Company be entitled to withdraw any Collateral in part or in whole from the Client’s Account.
2.6The Client shall on demand from the Company make payments of deposits or margin in cash, Securities and/or other assets in such amount and in such form into a designated account and within such time frame as specified by the Company (referred to as a „Margin Call‟), as the Company in its absolute discretion determines necessary to provide adequate security in respect of the Facility. For the purpose of a Margin Call, the Company shall use its best endeavours to contact the Client promptly by phone on the telephone numbers indicated by the Client on the Account Opening Form and/or by sending to the Client a Margin Call notice by post, fax, electronic mail or otherwise. The Client agrees that it shall be deemed properly notified of the Margin Call even if the Company fails to contact it by phone or the Client fails to receive the written notice.
2.7Any failure by the Client to comply with Clause 2.6 of this Margin Client Agreement and any Collateral being at risk (as that term is defined in the PPSA), will each constitute an Event of Default under Clause 11 of the Agreement.
2.8The Client agrees to pay interest on a daily basis on the amount of the Facility extended to the Client. The interest rate shall be at one percent per annum above the Company’s cost of funds which will vary according to the prevailing money market situation and as notified to the Client by the Company from time to time. Such interest charges may be deducted by the Company from the Margin Account or from any other account of the Client with the Company or its Associates.
3.1The Client, as beneficial owner, charges in favour of the Company by way of first fixed charge and grants to the Company a security interest, all the Client’s respective rights, title, benefits and interests in and to all Collateral as a continuing security (“Charge”) for the payment and satisfaction on demand of all monies and liabilities (absolute or contingent) and performance of all obligations under the Margin Facility Terms which are now or at any time hereafter may be due, owing or incurred from or by the Client to the Company or its Associates, or for which the Client may be or become liable to the Company or its Associates on any account or in any manner whatsoever (whether alone or jointly with any other person and in whatever name style or firm) together with interest from the date of demand to the date of repayment, and any commission, legal and other costs, charges and expenses as they appear in the records of the Company or its Associates.
3.2The Charge shall be a continuing security notwithstanding any intermediate payment or settlement of Account or satisfaction of the whole or any part of any sum owing by the Client to the Company and/or its Associates and notwithstanding the closing of any of the Client’s Accounts with the Company and which are subsequently reopened or the subsequent opening of any Account by the Client either alone or jointly with others and shall extend to cover all or any sum of monies which shall for the time being constitute the balance due from the Client to the Company or its Associates on any Account or otherwise.
3.3The Client represents and warrants that the Collateral is legally and beneficially owned by the Client, that the Client is entitled to deposit the Collateral with the Company or its Associates, that the same is and will remain free from any lien, charge or encumbrance of any kind (except as provided for in clause 3.1 above), and any stocks, shares and other securities comprised in the Collateral are and will be fully paid up.
3.4Upon irrevocable payment in full of all sums which may be or become payable under the Agreement and the full performance of the Client’s obligations under the Margin Facility Terms, the Company will at the Client’s request and expense release to the Client all the rights, title and interests of the Company in the Collateral and will give such Instructions and directions as the Client may require in order to perfect such release. However, if any such payment or part of such payment is avoided by, or is required to be refunded or repaid under, or is required to be accounted for under, any applicable law (including any law relating to preferences or insolvency), then that payment or application will be deemed not to have discharged or affected the liability or obligation in respect of which that payment or application was received or made.
3.5Until the Charge becomes enforceable, (i) the Company will have the right, subject only to giving the Client notice, to exercise rights relating to the Collateral to protect the value of the Collateral; and (ii) except as otherwise provided in this Margin Client Agreement, the Client may direct the exercise of other rights attaching to, or connected with, the Collateral, but not in any manner which is inconsistent with the Client’s obligations under the Margin Facility Terms, or which in any way may prejudice the Company’s rights in relation to the Collateral.
a.The Client waives the right to receive a copy of the verification statement confirming registration of a financing statement or financing change statement relating to the security interest under the Facility.
b.To the extent permitted by law and in respect of the Agreement and the Margin Facility Terms and each security interest created under them:
i.the Client and the Company contract out of sections 114(1)(a), 133 and 134 of the PPSA
ii.the Client and the Company contract out of the Client’s rights to (and the Client waives its rights to) (1) receive notice of the Company’s proposal to retain personal property under section 120(2) of the PPSA; and (2) object to the Company’s proposal to retain any personal property under section 121 of the PPSA.
4 Power of Attorney
The Client, by way of security and for valuable consideration, irrevocably appoints the Company to be the Client’s attorney on the Client’s behalf and in the Client’s name to do all acts and things and to sign, seal, execute, deliver, perfect and do all deeds, instruments, documents, acts and things which may be required for carrying out any obligation imposed on the Client by or pursuant to the Margin Facility Terms and generally for enabling the Company to exercise the respective rights and powers conferred on it by or pursuant to the Margin Facility Terms or by law including (but without limitation):
i.To execute any transfer or assurance in respect of any of the Collateral;
ii.To perfect its title to any of the Collateral;
iii.To ask, require, demand, receive, compound and give a good discharge for any and all monies and claims for monies due or to become due under or arising out of any of the Collateral;
iv.To give valid receipts and discharges and to endorse any cheques or other instruments or orders in connection with any of the Collateral; and
v.Generally to file any claims or take any lawful action or institute any proceedings which it considers to be necessary or advisable to protect the security created under the Margin Facility Terms.
5 Disposal of Collateral
The Client agrees that in the event of any sale pursuant to the Agreement or the Margin Facility Terms, any Collateral will be sold or disposed of in the absolute discretion of the Company and upon any sale by the Company, a declaration made by an officer of the Company that the power of sale has become exercisable shall be conclusive evidence of the fact in favor of any purchaser or other person deriving title to any of the Collateral under the sale and no person dealing with the Company or its nominees shall be concerned to inquire into the circumstances of the sale.
6 Termination of Facility
•The Facility is repayable on demand and may be varied or terminated in the absolute discretion of the Company. In particular the Facility will be terminated upon the occurrence of any termination in accordance with Clauses 11 and 12 of the Agreement, and any notice of termination for that purpose shall be deemed to be a notice of termination of the Facility.
•Upon termination of the Facility, any outstanding indebtedness by the Client shall forthwith be repaid to the Company.
•Repayment of all or any of the loan amounts owed to the Company will not of itself constitute cancellation or termination of the Margin Facility Terms.
7 Security Unaffected
Without prejudice to the generality of the foregoing, neither the Charge nor the amounts thereby secured will be affected in any way by:
i.Any other security, guarantee or indemnity now or hereafter held by the Company or its Associates under or in respect of the Margin Facility Terms or any other liabilities;
ii.Any other variation or amendment to or waiver or release of any security, guarantee or indemnity or other document (including, except to the extent of the relevant variation, amendment, waiver or release, the Charge);
iii.The enforcement or absence of enforcement or release by the Company or its Associates of any security, guarantee or indemnity or other document (including the Charge);
iv.Any time, indulgence, waiver or consent given to the Client or any other person whether by the Company or its Associates;
v.The making or absence of any demand for payment of any sum payable under the Margin Facility Terms made on the Client whether y the Company or any other person;
vi.The insolvency, bankruptcy, death or insanity of the Client;
vii.Any amalgamation, merger or reconstruction that may be effected by the Company with any other person or any sale or transfer of the whole or any part of the undertaking, property or assets of the Company to any other person;
viii.The existence of any claim, set-off or other right which the Client may have at any time against the Company or any other person;
ix.Any arrangement or compromise entered into by the Company with the Client or any other person;
x.The illegality, invalidity or unenforceability of, or any defect in, any provision of any document relating to the Facility or any security, guarantee or indemnity (including the Charge) or any of the rights or obligations of any of the parties under or in connection with any such document or any security, guarantee or indemnity (including the Charge), whether on the ground of ultra vires, not being in the interests of the relevant person or not having been duly authorized, executed or delivered by any person or for any other reason whatsoever;
xi.Any agreement, security, guarantee, indemnity, payment or other transaction which is capable of being avoided under or affected by any law relating to bankruptcy, insolvency or winding-up or any release, settlement or discharge given or made by the Client on the faith of any such agreement, security, guarantee, indemnity, payment or other transaction, and any such release, settlement or discharge shall be deemed to be limited accordingly; or any other thing done or omitted or neglected to be done by the Company or any other person or any other dealing, fact, matter or thing which, but for this provision, might operate to prejudice or affect the Client’s liabilities under the Margin Facility Terms.
8 Risk Disclosure
The Company refers the Client to the Risk Disclosure Statements contained in Schedule 5 of the Agreement.
FORMAX International Market Limited
- (1)Formax International Market Limited ( 以下称“ FIML ” 、“Formax International Market Limited” 、“本公司” 、“我们”)，为一家在新西兰 注册成立的公司，其主要营业地址为Level 7, 203 Queen Street, Auckland Central, New Zealand。
- (2)当事方(以下简称「客户」，“您”或“阁下”)，其名称、地址和相关资料列于开户表格中 。
「Formax 集团公司」指公司和任何与之相关联的公司，如 1993 年公司法案第二节(3) 如指的“公司”，包括在新西兰或其他任何管辖法域注册的一个公司或其他实体构；
「指示」指由客户或其获得授权人士根据本协议第 4.1 条规定向本公司发出的任何指示或买卖；
- 2.7本公司只提供执行服务不提供任何财务投资建议。由本公司、本公司的董事、高级职员、 雇员或代理人提供的任何意见或资料(不论是否被要求的)都不应构成进行交易的要约或投资的建议。客户应独立地并且不依赖本公司，作出其本身的交易判断。
- 3.3客户需按本公司不时通知客户的利率和条款为帐户所有的借方结余(包括于任何时间 欠付本公司的任何金额)支付利息。该利息将逐日累计，并且应在每个日历月的最后一天或按本公司要求的任何日期支付。逾期未付利息将每月按复利计算及利息本身将产生新的利息。
- 4.1所有指示应由客户(或其获授权人士)当面口头或以书面方式，亲手递交、邮寄，或以本公司不时接受的其他方式发出，联系方式：[0800-0948-887,] [firstname.lastname@example.org]。
- 4.4 本公司可根据其绝对酌情权决定以何种形式或透过联营公司执行客户的证券交易。
- 4.5客户同意及谨此不可撤销地委任本公司并赋予其全面的权力及权限，作为客户的真正及合法授权人，在法律许可的全面范围内去为客户及代表客户执行本协议的条款，并于本公司认为在履行本协议的 目的有所需要或合宜之时，以客户或本公司本身的名义签署任何文件或文书。
- 5.7帐户应以本公司和客户双方同意的货币开设。如客户指示本公司以他货币进行任何交易，因相关货币的汇率波动而导致的任何收益或损失将由客户独自承担。 如因本公司履行本协议下的任何行动或步骤而需要进行由一种货币转换为另一种货币时，本公司可按其绝对酌情权决定的方式及时间进行该转换。客户授权本公司从客户的帐户中支付货币转换过程产生的任何费用。本公司保留在任何时候拒绝接受客户关于货币转换的任何指示的权利。
- 8.1 受下面条款制约，客户在收到本公司的要求后(该要求可包括任何金融市场监管局有关的联络资料)，应即时向金融市场监管部门或其他相关监管机构提供与其帐户进行交易的顾客以及(就客户所知的)交易最终受益人的身份、地址、职业和详细联络资料和相关信息。客户还应该将引发交易的第三方(如果该第三方与客户/最终受益人不同)的身份、地址、职业、详细联络资料和相关信息告知金融市场监管部门及其他相关监管机构。
- 8.2 如果客户为集体投资计划、全权委托帐户或全权委托信托进行交易，客户须按本公司的要求(该要求应包括金融市场监管部门以及相关部门的联络资料)即时向金融市场监管部门或相关监管机构或管辖范围内的任何监管机构提供有关该计划、帐户或信托的身份、地址和的详细联络资料和相关信息；及(如适用)提供有关该名代表该计划、帐户或信托向客户下达交易指示的人士之身份、地址、详细联络资料和相关信息。
- 8.3 如果客户为集体投资计划、全权委托帐户或全权委托信托进行交易，客户在客户全权代表该计划、帐户或信托进行投资权力已予撤销时，须在尽快可行的情况下通知本公司。在客户的全权代客投资权力已予撤销情况下，客户须按本公司的要求(该要求包括金融市场部门或相关监管机构有关的联络资料)即时向金融市场监管机构和任何国家的监管机构提供有关该名/或多名曾向客户下达有关交易指示的人士的身份、地址和详细联络资料和相关信息。
- 8.4 如果客户知悉其顾客乃作为其本身顾客的中介人进行交易，但客户并不知道有关交易所涉及其顾客的身份、地址、职业和详细联络资料，则客户应该确认以下各项：
- 8.5 在必要时客户确认已经得到进行交易的顾客、集体投资计划、全权委托帐户或全权委托信托的全部同意或豁免，客户确认，公司可以向监管机构提供以其帐户进行交易的有关顾客、计划、帐户或信托的身份和详细联络资料及交易最终受益人和引发交易人士（如果与其顾客/最终受益人不同）的身份和详细联络资料；
- 9.1 本公司将为帐户有关的资料保密，但为遵照交易所和证监会或任何其他监管机构、政府部门、税务部门（包括海外监管机构）的规定或要求资料时，本公司可以在无需征求客户同意或无需通知客户的情况下，为以上部门提供相关资料。
- 9.2 本公司有关个人资料使用的政策和应用载于本协议的附表2和附表3内。客户确认已完全明白及接受载于附表2、3内的条款。
- (v) 任何以口头或电子通讯方式发出的指示被错误理解、错误诠释，或电子讯息传递出现挤塞情况或任何其他原因导致传递上出现延误或错误，或本公司用作接收及处理透过电讯装置传递指示的电话或电讯系统或装置及所有其他有关设备、设施及服务出现任何机械故障、暂停或停止持续运作或有效。
- 14.1此外在不影响一般留置权、抵销权、本公司依据法律本协议拥有的其他类权利外，本公司有权根据法律及本协议持有的客户的所有证券、应收款项、现金和客户(由客户个人或与他人共同持有) 的其他财产在任何时候均受制于本公司拥有的一般留置权，以此作为持续赔偿和清偿客户因交易或其他缘故引致而欠本公司及其联营公司的债务。
- 14.2在不影响一般留置权、抵销权或或本公司依据法律及本协议拥有的其他类权利外，本公司本身和作为任何联营公司的代理人在任何时候都拥有在不预先告知的情况下将客户的任 何或所有帐户与本公司或联营公司的帐户合并和整合的权利，不论帐户是客户个人拥有或与他人共 同拥有的。本公司可以抵销或转让该等帐户中的现金、证券或其他资产以清偿客户欠本公司或其任何联营公司的责任或债务，不论该等责任或债务是实际或有的、基本或附带的、有担保或无担保的，个人承担或共同承担的，也不论该等责任或债务是否以银货两讫形式从客户的证券买卖中产生。
- 16.1本公司将通过以下方式向客户报告交易执行的情况，(i)根据协议迅速以电话、电子通讯/电邮、传真或其他方式报告和/或(ii) 在执行交易之后两个营业日内向客户寄送书面交易确认书和帐户结单。本公司将根据有关法例、规例及规则向客户寄送当月交易状况摘要的月度结。公司会根据相关法律、法规、条例向客户发送月交易概要的月结单，或者六个月发送一次结算单，如果账户中没有发生任何交易或任何收入、或在特定的月份账户没有任何费用项目支出、或账户没有未结清余额或证券
- 16.2客户有义务仔细审核交易确认书、月度结单或半年结算单，并在该确认书或结单发出后3 个营业日或 本公司指定的时间内，以书面方式向本公司报告其中的错误或不符。客户同意本公司不承担由于迟误向本公司报告错误而导致的损害的责任。另外，在没有明显错误的情况下，交易确认书、月度结单、半年结算单将是结论性的，客户将被视为已放弃质询任何错误的权利，本公司 亦无须对客户就结单或任何有关帐户采取或未有采取的行动的索偿负责。如帐户出现多付款项或证 券的情况，客户同意一旦发现将尽快地通知本公司，并同意不取走多付的款项和证券（或如果已经取走，应及时予以退回）。
- 17.3客户在此授权本公司代表其作出新上市和/或发行证券的申请，并对该等新上市和/或发行证券所(不论是向有关证券的发行人、保荐人、包销商或 配售代理人、交易所或任何其他相关监管机构或人士)需要作出的所有声明、保证和承诺。
- 17.4客户兹进一步声明和保证，并授权本公司通过任何申请表格(或以其他方式)向交易所和任何其他适合人士披露和保证，为受益予客户或客户在申请中载明的受益人士，本公司作为客户代理人作出的 任何申请是客户或本公司代表客户作出唯一的申请。客户确认并接受，就本公司作为客户代理人作出的任何申请而言，本公司和有关证券的发行人、保荐人、包销商或配售代理人、交易所或任何其他相关监管机构或人士会依赖上述声明和保证。
- (ii)倘若该大额申请因声明和保证被违反或任何与客户有关的理由而被拒绝，客户将按条款 第 13 条向 本公司作出赔偿。尽管有条款第 5.4 条的规定，倘若大额申请只获部分发售，客户同意本公司可按其绝对酌情权决定分配所购得证券的方式，包括在所有参加大额申请的客户间平均分配证券。客户不得对有关申请分配证券的数额或优先次序提出异议。
- 18.1客户根据本协议提供的资料是真实、准确和完整的，及本公司有权依赖该等资料行事直至本公司收 到有关资料更改的书面通知为止。如该等资料有重要变更，客户将立即以书面通知本公司；及
- 18.2客户具有权力和法律行为能力签署本协议及履行本协议下的责任，包括在适当的情况下指导本公司进入交易，本协议对客户有效且具有 法律约束力。
- 18.9客户已经阅读应充分理解附件 5 风险披露声明。
- 20.1所有通知、报告、结单、确认书和其他通讯将以书面或电子形式(如适用)提交，并可 由专人送递、以邮递、传真或电子邮件的方式传达，如送致客户，应送致客户在开户表格中所载的地址、传真号码或电子邮件地址，或客户以书面通知本公司之其他指定地址、传真号码或电子邮件地址；如送致本公司，应送致本公司不时选择及通知客户的办事处地址。
- (i)以专人送递或以传真或电子邮件传递，则在送递或传递之时被视作妥善送达; 或
- b.在法律承认及许可的最大范围内，本公司不对任何费用，损失或者损害承担责任或者法律责任，包括但不仅限于可能由于任何人对本公司提供的任何信息，总结，观点或者建议产生依赖而造成 的直接或者间接的损失或者损害，无论是否由本公司的任何过失或者疏忽所造成的任何损失或者损害。
- c.投资有风险。您应当自己决定：(i) 对任何投资或者证券的风险承受水平及(ii)投资项目是否满 足您的投资需求；
- e.在您作出任何投资决定时，您将会自我评估自身的财务状况和财务目标，并且您在申请表中已 经将准确完整的信息提供给本公司，如有任何更改，请及时以书面形式告知本公司；
- f.您授权本公司从您方收集任何个人数据或者其他信息，并且将这些信息发送至其分支机构或者 Formax 集团的成员公司用于为您提供有关本协议的金融服务或者其他相关服
- g.您同意本公司 就本公司 的相关产品或者服务，及其任何分支机构或指定第三方向您发送邮件或 者电子通讯信息，以提供服务及直接营销相关金融服务。如果您决定退出直接营销，您可直接在开户表格中进行。
您理解并且接受以下所有风险提示与披露、附表 5 风险披露声明和附表 3 美国的外国帐户税收遵从法（“FAT CA” ）及所有相关税务事务。您理解并接受附加的附表将构成本协议的组成部分，包括开户表格（ 附表 1 ）， 个人声明（附表 2 ），美国外国账户税收遵从 法 （“FATCA”）和有关税务事项（附表 3），在网上交易协议，（附表 4），并在附表 5 的风险披露声明，保证金客户协议（附件 6）。
- 26.3本公司未能或迟延行使本协议有关的任何权利、权力或特权，不能被假定为自动放弃该权利，及本 公司行使任何个别或部分的权利、权力或特权时，不能被假定为排除随后或将来行使该权利、权力或特权。
- 26.5客戶理解本公司不提供任何服务或产品给美国人（包括但不限于美国公民或居民及在 美国法律或条 例或美国的外国账户税收法案（FATCA）下所指的美国人）26.5及/或有任何其他有美国标记的任何人（包括但不限于一个人将被视为美国人，如果下列信息得以确认： i. 帐户持有人被归 类为美国公民成居民、ii. 在美国出生、iii. 拥有美国住址或美国邮寄地址，包括美国邮政信箱、iv. 拥有美国电话号码，不论该电话号码是否联络客户的唯一号码、v. 给指令定期支付固定金额予在美 国的帐户或美国的地址、vi. 授权书或签字权限给予有美国住址的人、vii. 当转交地址或保存邮件地 址是客户的唯一地址）。客户同意对于任何将会成为美国人及/或有任何有美国标记的任何人，本公司有权终止提供任何服务并终止本协议。
- 26.6客戶同意向本公司提交证明客戶非美国籍身份及客戶没有任何美国标记及任何有关美国标记档(包括美国税局 W8 表格及本公司所不时要求的其他文件)。如果客戶的身份更改为美国人或获得美国标记，客戶应在更改发生 30 天内告知公司，并且客戶同意向公司提供美国税局 W-9 表格以及本公司所不时要求的其他文件。
- 26.8客户同意，本公司有绝对权力在本协议下停止向客户提供任何服务，如果客户未能按照本公司不时的要求, 及时提供本公司所要求的信息或文件。
附表 1 开户表格
SCHEDULE 2 Privacy Statement
Client Information Form (Individual/Joint Account)
附表 2 个人资料收集声明
SCHEDULE 1 Account Opening Form
- (i)本公司及 Formax 集团公司；
- (ii)Formax 集团的任何董事、高级职员、雇员或代理人;
- (iii)执行客户指示和/或从事 Formax 集团业务而由集团授权的任何人士(例如律师、顾问、代名人、托管人等)；
- (iv)Formax 集团持有与客户相关的任何权利和义务的任何实际或建议的受让人；及
- (v)任何政府机构、监管机构或其他团体或机构(不论是法例或是任何 Formax 集团成员适用的规例所要求)。
- (iv)根据本协议或客户与 Formax 集团之间的其他任何协议向客户提供服务;
- (v)有关遵守 Formax 集团公司任何规则、法律、规例、法院判决或其他任何监管机构之判决的任何目的；任何指南,指导或者请求或出具任何法律、监管、政府、税务、执法或其他当局,或自我监管、行业组织、内部或外部金融协会服务提供商，根据新西兰目前现有和未来的任何国际指导,内部政策或程序；
- (vii)收取或者采取任何行动以遵守本公司或任何 Formax 集团成员的责任以符合与下述事宜有关的法律或 国际指引或监管要求：有关侦测、调查及预防清洗黑钱、恐怖分子融资活动、贿赂、贪污、逃 税、欺诈、逃避经济或贸易制裁及/或规避或违反有关此等事宜的任何法律的任何行为或意图，包括但不仅限于“FATCA”；
- ii.任何为本公司及 Formax 集团公司就其业务开展提供行政、电讯、计算机 付款或证券结算或其他服务的第三方服务供应商（包括其员工、董事、职员和代理）；
- iii.任何管理机构、政府机关、税务机关 ；
- v.代表个别人士行事提供该个别人士资料的任何人士、收款人、受益人、户口代名人、中介人、往来及代理银行、结算公司、结算或交收系统、市场交易对手、上游预扣税代理、掉期或交易储存库、证券交易所、客户拥有证券权益的公司（如该等证券由本公司或任 何 Formax 集团成员持有），或向客户的户口作出任何付款的人士；
- vi. 信贷资料服务机构，如资料当事人欠帐时则可将该等资料提供予债务追收代理；
- vii.Formax 集团或任何 Formax 集团成员就本协议所载目的而有责任或必须或被预期向其作出披露的任何人士；
- ix.任何 Formax 集团成员 ；
- x.第三方财务机构、承保人、信用卡公司、证券及投资服务供应商 ；
- xi. 第三方奖赏、客户或会员、合作品牌或优惠计划供应商或各商号；
SCHEDULE 3 附表 3
U. S. Foreign Account Tax Compliance Act ("FATCA") and tax related matters
附表 4 网上交易协议
SCHEDULE 4 Online Trading Agreement
- 1.4如客户同意，分别在现金客户协议第 16 和 20 条中提及的「交易确认单和声明」和「通知及通讯」可以只由电子服务发出；及此同意可以最初在开户表中标明，或随后透过电子服务标明。由电子服务发送的通知和通讯将被视为已经在传送时妥善发出。
- (vii)向本公司提供客户的电子邮件地址，及立即通知本公司客户的电子邮件地址的任何改动; 并在客户指定的电子邮件地址接受本公司的电子通讯;
- 2.6如果电子服务未能使用，客户将根据本协议第 4.1 条之规定发出指示。
- 5.2客户同意，如客户违反了本协议(或本网上交易协议)、适用的任何证券法例或规例、或任何第三方的权利，包括(但不限于)对任何版权的侵犯、对任何知识产权的侵犯以及对任何私隐权的侵犯， 而使本公司、其业务代理及资讯供应者遭受的任何或所有索偿、损失、责任、开支和费用(包括但 不限于律师费)，客户将就此对其作出赔偿，及保证本公司、其业务代理及资讯供应者不会因此而招致任何损失。即使终止本协议或网上交易协议，客户在此的责任将仍然有效。
- 6.1本公司保留权利，并有绝对酌情权而无需通知及不受限制地，于任何原因，包括但不限于未经授权 下使用客户的登录用户名、密码、和/或帐户号码、违反本网上交易协议或本协议、本公司未 能继续从任何资讯供应者获得任何资讯、或本公司与资讯供应者之间的一个或多个协议被终止，终止客户接达电子服务或其任何部分。
本公司要求客户参阅附表 5 中所载的风险披露声明。
附表 5 风险披露声明
SCHEDULE 5 Risk Disclosure Statement
本风险披露说明供投资者一般参考之用，旨在帮助投资者了解证券，认股权证（窝轮）、外汇、保证金交易、衍生工具及其他类型投资的潜在风险。本风险披露说明不能披露所有涉及的风险 及投资证券、认股权证、外汇、保证金及衍生产品交易的其他重要方面。您应根据自身的条件、财务状况、投资目标与风险承受能力，自行衡量该产品确实适合你投资。您需要留意相关建议 文件(投资、认股权证、保证金交易、衍生工具或其他产品）包含的风险（如果有的话），并在交易或投资前应寻求合理意见。除非投资者清楚明白此类投资产品的性质及有关的风险与潜在的损失，否则投资者不应参与此类投资活动。不同的投资有不同程度的风险，在决定是否投资此类产品前，你应了解以下几点。
若客户将抵押品存入本公司作为保证金，抵押品将根据交易种类和交易地的不同区分处理。处理会因客户是否在认可或指定的投资交易所进行交易或场外交易而截然不同， 若在交易所进行则应依照该交易所（及相关清算机构）的规则处理。存入的抵押品可 能丧失其属于客户资产的地位。即使客户的交易最终被证明为盈利，客户也有可能无法拿回当初存入的同样资产，并需要接受现金付款。
- 本公司在新西兰以外地方收取或持有的客户资产，是受到有关海外司法管辖区的适用法律及规例所监管的。这些法律及规例与新西兰或阁下所属之司法管辖区例制订的规则可能有所不同。因此，有关客户资产将可 能不会享有赋予在新西兰或阁下所属之司法 管辖区收取或持有的客户资产的相同保障。
- (a) 如果您透过电子服务进行买卖，您须承受该电子服务系统带来的风险，包括有关系统硬体和软件可能 会失灵的风险。系统失灵可能会导致的买卖盘不能根据指示执行，甚或完全不获执行；
- (b) 由于未可预计的交通挤塞和其他原因，电子服务可能并不可靠的，及存在通过电子服务进行的交易在传输和接收你的指示或其他资讯过程中可能会被耽误、延迟执行你的指示或有关指示以有别于你发出指示时的市价执行、指示在传输时被中断或停顿等风险。在通讯过程中也存在误解或错误的风险，以及在发出了指示后，通常也不一定可以取消。由于此类中断、耽误或被第三方进入而使客户遭受的任何损失，本公司概不承担责任。如果您不准备接受此类中断或耽误引致的风险，您不应透过电子服务来作出任何指；及
- (c) 通过电子服务向您提供的市场数据和其他资讯可能是本公司从第三者获得的。虽然本公司相信这些数据和资讯是可靠的，但本公司或该等第三者都不会保证这些数据和资讯的准确性、完整性和即时性。
- 借存放抵押品而为交易取得融资的亏损风险可能极大。你所蒙受的亏蚀可能会超过你存放于本公司作为抵押品的现金及任何其他资产。市场情况可能使备用交易指示，例如 “止蚀”或“限价”指示无法执行。您可能会在短时间内被要求存入额外的保证金款额或缴付利息。假如您未能在指定的时间内支付所需的保证金款额或利息，你的抵押品可能会在未经你的同意下被出售。此外，你将要为你的帐户内因此而出现的任何短欠数额及需缴付的利息负责。因此，您应根据本身的财政状况及投资目标，仔细考虑这种融资安排是否适合您。
- 为保护投资人自身，投资人可提前了解保证金交易过程以及当凭保证金额度购买的股票 价格下跌时会发生什么情况。请知悉你的贷款将被收取利息，且影响你的整体投资回报。
附表 6 保证金客户协议
- 2.2除下列第 2.4 条规定外，本公司可向客户提供不超过信用限额的融资金额。本公司可在任何时候通知更改客户可使用的信用限额及保证金比率。尽管有已通知客户的信用限额，本公司仍可有酌情权向客户提供超过该信用限额的融资，而客户亦同意客户有责任按第6.1条之规定全数偿还任何由本公司提供的任何融资。
- 2.3客户指示并授权本公司提取融资用以清偿应付本公司或其联营公司任何有关客户购买证券、履行本 公司或其联营公司要求任何持仓的保证金义务、或支付所欠本公司或其联营公司的任何佣金或其他开支和费用的款项。
- 2.5只要客户对本公司存在任何债务，本公司将有权在任何时候及不时拒绝客户从客户的帐户提取任何 或所有抵押品；及在未获得本公司事先书面同意之前，客户将不能从客户帐户提取任何部分或全部抵押品。
- 2.6若本公司据其绝对酌情权，认为其提供的融资需要有足够的担保，客户应根据本公司的要求，按照 本公司指定的金额、形式，以现金、证券和/或其他资产的形式支付一定数额的存款或保证金，并 在指定的时间内存到指定的帐户内(称为「追收保证金通知」)。为发出追收保证金通知，本公司将 尽力及尽快按照客户在开户表格中提供的电话号码以电话形式联络客户，和/或通过邮件、传真、电邮或其他方式，向客户发出追收保证金通知。客户同意，即使本公司未能以电话与客户取得联络，或客户未收到该书面通知，客户将被视为已获得适当的通知。
- 2.7若客户未能遵守本保证金客户协议第 2.6 条的规定和任何抵押品风险规定，将构成本协议第 11 条之下的违约事件。
- 2.8客户同意为自己获得的融资支付利息，及利息将逐日计算。利息率应为一个高于本公司资金成本的一个百分点，并将会随当前的货币市场状况而改变及由本公司不时通知客户。该利息费用可由本公司从 客户在本公司或其联营公司开立的保证金帐户或任何其他帐户中扣除。
- 3.1客户以实益拥有人的身份，以第一固定抵押方式和保证本公司抵押物权益方式向本公司抵押所有客户于抵押品的各种权利、所有权、利益及权益，以作为持续的抵押品(「抵押」)，以便客户在接获要求后偿付客户可能欠本公司 或其联营公司的所有款项及债项(绝对或或有的)，及客户在现时或将来履行保证金融资条款下可能 到期、所欠或招致的义务，或客户不论于任何帐户或以何种形式而欠本公司或其联营公司的债项 (不论是单独或与任何其他人士一起，及不论以何种名称形式或商号)，连同由作出还款要求日期至 付还日期期间的利息，以及在本公司或其联营公司记录中所列的任何佣金、法律或其他费用、收费及开支。
- 3.2即使客户向本公司和/或其联营公司作出任何中期支付或结清帐户，或清还全部或部分欠款；及即 使客户结束在本公司开立的任何帐户，并在随后由客户独自或与其他人随后共同在本公司重开或再 开立任何帐户，该抵押将仍属一项连续的抵押，并将会涵盖现时客户于本公司或其联营公司的任何 帐户构成结余欠款的所有或任何款项，或其他地方显示出客户欠本公司或其联营公司的结余欠款。
- 3.3客户声明并保证，抵押品乃是由客户本人合法及实益拥有，客户有权将抵押品存放于本公司或其联营公司，所存放的抵押品在现时或将来都不受任何类型的留置权、抵押或处置权所约束（除了上述第 3.1 条规定），并且构成抵押品的任何股票、股份和其他证券现时已全数缴足股款及将会全数缴足股款。
- 3.4当客户不可撤销地全数付清根据本协议之下所有可能应支付或成为应支付的款项，及已全部 履行客户在保证金融资条款之下的义务后，本公司将会在客户要求下及支付所需费用后，向客户发 还本公司在抵押品的所有权利、所有权和权益，并会就客户为妥善处理该项发还而要求其作出的指 令和指示而行事。然而,如果依据任何适用的法律(包括任何有关优先权或破产的法律)，任何此类付款的全部或部分是可避免的,或者是需要退还或偿还,或被要求说明原因, 那么关于付款或申请将被视为没有被排除或影响责任和义务。
- 3.5在该抵押成为可强制执行之前，(i)本公司只须向客户发出通知后，便有权行使与抵押品有关的权利， 以保障抵押品的价值；及(ii)除非在本保证金客户协议另有规定，否则客户可指示行使附于或与抵押 品有关的其他权利，但此举不得与客户在保证金融资条款之下的义务有所矛盾，或在任何形式下可能损害本公司就抵押品的权利。
- (a) 客户放弃接受核查声明的复印件的权利，该核查声明是用以确认相关担保物权的申请融资声明或融资变更声明。
- (b) 在法律允许的程度范围内，适用于于本协议，保证金融资条款及条款下的担保物权：
- (i)客户和本公司约定不受 PPSA 114(1)(a)，133 和 134 条约束。
- (ii)客户和本公司约定不受以下客户权利约束（客户放弃其权利）：（1）接收本公司建议根据 PPSA 120（2）条保留个人财产的通知；（2）反对本公司根据 PPSA 121 条保留任何个人财产的建议。
客户可以担保的方式，不可撤销、支付报酬地任命本公司作为客户的受托代表人，代表客户并以客户的名义行事，及签署、盖章、执行、交付、完善及订立所有契约、文书、文件，作为或事物，以履行根据保证金融资 条款施加于客的义务，及在整体上令本公 司行使根据保证金融资条款或根据法律而赋予本公司的权利和权力，包括(但不限于)：
- (iii)就任何抵押品之下或所产生的到期或变成到期的任何及所有款项和索偿而作出查询、规定、要求、接 收、和解及作出良好的解除;
- (v) 就为着本公司认为有必要或有利于保护根据保证金融资条款下产生的抵押品起见，一般而言作出任何索偿、或采取任何法律行动或进行任何诉讼程序。
- (i)本公司或其联营公司就保证金融资条款或任何其他责任，而在现时或将来所持有的 任何其他保证金、担保或弥偿；
- (x)涉及该项融资的任何文件的任何条款，或任何保证金、担保或赔偿(包括该抵押)，或在任何该等文件或任何保证金或赔偿(包括该抵押)之下及有关条款的不合法性、无效、或未能执行或缺陷，无论原因 是基于于越权、不符合有关人士的利益，或任何人未经妥善授权、未经妥善签立或交付或因为任何其他缘故；
- (xi)任何根据涉及破产、无力还债或清盘的任何法律能够避免的或受其影响的任何协议、保证金、担保、赔偿、付款、或其他交易;或任何客户依赖任何该等协议、保证金、担保、弥偿、付款或其他交易所 提供或作出的债务的免除、结算或清还，而任何该等债务免除、结算或清还将被视为受到相应的限制; 或由本公司或任何其他人士所作出或遗漏或忘记作出的事物或任何其他交易、事实、事宜或事物(如果不是因为本条款)可能在运作上损害或影响客户在保证金融资条款之下的责任。
本公司要求客户参阅附表 5 的风险披露声明。