Formax Terms Of Business
Unless otherwise stated, these terms of business, together with the Schedules and accompanying documents, as amended from time to time ("Terms of Business") apply to Retail Clients of Formax International Market Limited ("Formax"). If you are a United States Resident, you are ineligible to enter into any Spot or Spread Betting (defined below) Transactions and therefore any references to Spot or Spread Betting Transactions in these Terms of Business does not apply to you.
These Terms of Business set out the terms of the contract between you and us. These Terms of Business are legally binding and will take effect and be deemed accepted when we receive these Terms of Business signed by you.
We will deal with you on an execution only basis at all times. Please note that we will not provide you with any advice on the merits of you entering into these Terms of Business or any Transaction. We will not provide you with any tax advice on the same. You may wish to seek independent advice before entering into these Terms of Business and/or any Transaction.
Schedule 1 – Complex Products General Risk Disclosure Notice.
Schedule 2 – Spot Supplement.
Schedule 3 – Account Opening Forms and Signature Page (which can be found online).
These Terms of Business set out important aspects of the relationship between Formax and its clients. If there is any aspect of these Terms of Business that you do not understand or where you require further information you should contact Client Services at Formax International Market Limited at the address below:
Formax International Market Limited
Level 7, 203 Queen Street, Auckland
Free phone: 0064-9-3799624
Clients are asked to confirm their acceptance of these Terms of Business by either signing the signature page of these Terms of Business online through Formax' website or by signing and returning the hardcopy signature page of these Terms of Business enclosed.
1. General Information
1.1 Information about us:Formax International Market Limited ("Formax", "we" or "us") is registered on the New Zealand Financial Service Providers Register("FSPR") under the Financial Service Providers (Registration and Dispute Resolution) Act 2008 ("FSPR Act") registration number FSP207987. We are required to conduct our business and dealings with you in accordance with the rules applying under the FSPR Act and other Applicable Regulations.
Please read these Terms of Business carefully as they contain important information concerning your and Formax' rights and obligations in relation to the services we agree to provide you. Please let Formax know as soon as possible if there is anything which you do not understand. We recommend that you also seek independent financial advice to determine whether Margined Transaction trading is appropriate for you.
1.2 Our capacity: We will deal with you as principal unless we inform you that we are dealing with you as agent generally or with respect to any Transaction or class of trading. Every Order which we may take is accepted and executed on the basis that we act on our own account as principal and not as your agent.
1.3 Your capacity: You will enter into trading as principal unless otherwise agreed in writing by us.
1.4 Language of Communications: You may communicate with us in English. All Formax standard documents will be available in English. If a document is translated into another language this will before information purposes only and the English version will prevail.
These Terms of Business supersede any previous agreement between us on the same subject matter and take effect when you signify your acceptance of these Terms of Business by either signing the signature page of these Terms of Business through Formax's website or by returning a signed hardcopy of the signature page of these Terms of Business. By completing and signing the signature page of these Terms of Business you confirm that you have read, understood and agree to be bound by these Terms of Business with us.
1.6 Amendments: These Terms of Business may be amended from time to time as set out in clause 28.1.Anychanges to these Terms of Business will not apply to trading opened prior to the date on which the changes become effective in accordance with clause 28.1 unless specifically agreed otherwise. Any amendments to these Terms of Business will be deemed accepted if and when you place an Order with us after the date on which the changes become effective.
1.7 Duty to you: Nothing in these Terms of Business will exclude or restrict any duty or liability owed by us to you under any Applicable Regulations, including the Financial Advisers Act 2008 as applicable. If there is any conflict between these Terms of Business and any Applicable Regulations, then those Applicable Regulations will prevail except as expressly set out in these Terms of Business.
1.8 Duties and responsibilities: We assume no greater responsibility or fiduciary duty than that imposed by any Applicable Regulations or the express terms of these Terms of Business.
1.9 Investments: The particular Investments which are available to trade from Formax are listed on the Formax Online Facility and updated from time to time. These Terms of Business govern your relationship with Formax for all Investments traded with Formax.
2.1 Margined Transaction trading carries a high risk. Please note:
(a) You may sustain a total loss of Initial Margin funds and any additional funds deposited to maintain your position;
(b) You may not be responsible for debit balances directly resulting from trading activity;
(c) If the market moves against your position or Margin levels are increased you may be called upon to pay substantial additional funds on short notice to maintain your position;
(d) If you fail to comply with a request for additional funds within the time prescribed, Formax in its sole discretion may liquidate any or all of your positions at a loss;
(e) Whether you make a profit or a loss will depend on fluctuations in the underlying security or commodity which is outside Formax's control.
2.2 You must read the General Risk Disclosure Notice at Schedule 1.
2.3 You must make an independent decision as to whether or not to enter into Margined Transaction trading with Formax on our Terms of Business. Please note:
(a) Formax does not provide any advice (including tax) and Formax will not advise on the merits or otherwise of your Margined Transaction trading;
(b) The decision to place a Margined Transaction is yours alone. You (and not Formax) are responsible for the effect a Margined Transaction might have on any open positions;
(c) We deal with you on an execution only basis at all times.
We recommend that you seek independent financial advice before entering into Margined Transaction trading.
3.1 In these Terms of Business the following words and phrases have the following meanings:
Account: means an account of yours opened with us;
Account Opening Forms: means the application forms supplied by Formax to open your Account (which can be filled out online);
Affiliate: means any company or partnership controlled by, or controlling, or in common control with another person. A person, company or partnership will be deemed to control another person, company or partnership if the former person, company or partnership possesses, directly or indirectly, the power to direct, or cause the direction of, the management and policies of the other person, company or partnership whether through the ownership of voting securities or partnership interests, representation on its board of directors or similar governing body, by contract or otherwise;
Affiliated Company: means (in relation to a person) an undertaking in the same group as that person;
Applicable Regulations: means all applicable legislation or rules of a regulatory body and all other applicable laws, rules and regulations as in force in New Zealand from time to time;
Authorised Officer: means a person authorised by Formax to approve changes to these Terms of Business;
Business Day: means a day (other than a Saturday or Sunday) on which:
(a) In relation to a date for the payment of any sum denominated in:
(i) Any Currency (other than Euros), banks generally are open for business in the principal financial centre of the country of such Currency; or
(ii) Euros, settlement of payments denominated in Euros is generally possible in London or any other financial centre in Europe selected by us; and
(b) In relation to a date for the delivery of any property, property of such type is capable of being delivered in satisfaction of obligations incurred in the market in which the obligation to deliver such property first was incurred; and
(c) For all other purposes, is not a public holiday in New Zealand;
Client: means you;
Client Money: means money received from, or on account of, a Client in relation to acquiring, holding, or disposing of an Investment;
Client Money Rules: means the rules applying to Client Money set out in section 20;
Closing Date: means the date on which a Margined Transaction is closed in accordance with these Terms of Business;
Closing Notice: means a notice given by you or Formax to close all or any part of any Margined Transaction;
Closing Price: means:
(a) in the case of a Spot Contract the Contract Investment Price at the time a Closing Notice is effective as determined by Formax or the Contract Investment Price at the time a Spot Contract is closed out by Formax exercising any of its rights under these Terms of Business; or
(b) in the case of a Spread Bet, the Settlement Price of a Spread Bet as determined by Formax; or
(c) in the case of a Rolling Spot Forex Contract, the exchange rate at which you can buy if the Rolling Spot Forex Contract you wish to close was a sell and the exchange rate at which you can sell if the Rolling Spot Forex Contract you wish to close was a buy;
Commission: means the commission, charges or other remuneration for the conduct of the business by Formax as notified to you from time to time;
Contract Quantity: means the number of the Investments to which a Spot Contract relates;
Contract Financial Instrument: means the underlying financial instrument that forms the subject of a Spot Contract;
Contract Investment Price: means the current price of the Contract Investment as determined by Formax;
Contract Investment: means the underlying financial instrument, commodity, asset or other such investment notified by Formax from time to time that forms the subject of a Spot Contract;
Contract Settlement Date: means the date on which a Spot Contract is closed;
Credit Support Provider: means any person who has entered into any guarantee, hypothecation agreement, and margin or security agreement in our favor in respect of your obligations under these Terms of Business;
Currency: will be construed so as to include any unit of account;
Current Contract Value: means the Contract Investment Price multiplied by the Contract Quantity from time to time;
Event of Default: means any of the events of default as listed in paragraphs (a) to (l) of clause 23.1 of these Terms of Business;
Exceptional Market Event: means the suspension, closure, liquidation, imposition of limits, special or unusual terms, excessive movement, volatility or loss of liquidity in any relevant market or underlying financial instrument, or where Formax reasonably anticipates any of the above circumstances are about to occurs;
Expiry Date: means the expiry date and time of a Margined Transaction as determined by Formax;Formax Online Facility: means the online rading platform of Formax;
Initial Margin: has the meaning given in clause 15.1 of these Terms of Business;
Interest Rate: means LIBOR (the London Interbank Offered Rate) plus a markup not to exceed 4%, or such other benchmark interest rate as may be applicable and as selected by Formax depending upon the currency of a Spot Contract, plus a markup not to exceed 4%;
FSCL: means Financial Services Complaints Limited;
Investment: means a financial instrument or any asset or commodity or other investment;
Margin: has the meaning set out in clause 15.2 of these Terms of Business;
Margin Call Warnings: means a demand for such sums by way of Margin as Formax may reasonably require for the purpose of protecting itself against loss or risk of loss on present, future or contemplated trading under these Terms of Business;
Margined Transaction: means any Spot, Rolling Spot Forex Contract, precious metals contract or any other Transaction liable to Margin;
NZST: means New Zealand Standard Time;
GMT: means Greenwich Mean Time;
UCT: means Universal Time Coordinated;
Order: means an instruction to purchase or sell an Investment, open a Spot Contract, a Rolling Spot Forex Contract, precious metals contract or other Margined Transaction at a price quoted by Formax as appropriate;
Opening Contract Value: means in respect of any Spot Contract, the Contract Quantity multiplied by the Opening Price;
Opening Price: means in respect of any Spot Contract, the Contract Investment Price specified in an Order acceptance of which gives rise to that Spot Contract;
Related Party: has the same meaning as related company in section 4 of the FSPR Act;
Retail Client: means any person who receives a financial service in New Zealand who is not a Wholesale Client as defined in section 49 of the FSPR Act;
Rolling Spot Forex Contract: means any over the counter contract which is a purchase or sale of foreign currency entered into between you and Formax, excluding forward contracts;
Rules: means legislation, articles, rules, regulations, procedures and customs, as in force from time to time;
Settlement Price: means the price of a Spread Bet when it is closed as determined by Formax with reference to the then market price of the relevant Spread Bet Investment plus or minus a Spread;
Spread: means the difference between the lower and higher figures of a quoted two-way price for a market;
Stock Exchange: means any exchange where a security has its primary listing;
Take-Over Offer: means with respect to any Margined Transaction which relates to an equity security, a takeover offer, tender offer, exchange offer, solicitation, proposal or other event by any entity or person that results in such entity or person purchasing or otherwise obtaining or having the right to obtain, by conversion or other means 50% or more of the outstanding voting shares of the issuer of the relevant equity security;
Transaction: means a contract in an Investment or any other contractual arrangement entered into between you and us including a Margined Transaction as defined in these Terms of Business;
United States Resident: means any natural person resident of the United States; any company, partnership, or other legal entity created or organized under the laws of any jurisdiction of the United States; a branch or agency of a foreign entity located in the United States; a trust of which the trustee is a United States resident; an estate of which a United States resident is the executor or administrator; or any account held for the benefit of a United States resident;
Variation Margin: has the meaning given in clause 15.2 of these Terms of Business;
Wholesale Client: has the meaning set out in section 49(2) of the FSPR Act;
3.2 General interpretation: A reference in these Terms of Business to a "clause" or "Schedule" will be construed as a reference to, respectively, a clause or Schedule of these Terms of Business, unless the context requires otherwise. References in these Terms of Business to any statute or statutory instrument or Applicable Regulations include any modification, amendment, extension or re-enactment thereof. A reference in these Terms of Business to "document" will be construed to include any electronic document. References to persons include bodies corporate, unincorporated associations and partnerships/persons, firms, companies, corporations, governments, states or agencies of a state or any associations or partnerships (whether or not having separate legal personality) of two or more of the foregoing. The masculine includes the feminine and the neuter and the singular includes the plural and vice versa as the context admits or requires. Words and phrases defined in Applicable Regulations have the same meaning in these Terms of Business unless expressly defined in these Terms of Business.
3.3 These Terms of Business and the Schedules: The clauses contained in these Terms of Business and its Schedules together constitute the Terms of Business. We may from time to time send to you further schedules with respect to a specific market or classes of Investments which will also form part of the Terms of Business.
3.4 Headings: Headings are for ease of reference only and do not form part of these Terms of Business.
4. Client Classification
4.1 For the purposes of the services provided by Formax under these Terms of Business we will act as principal and not as agent on your behalf. We will treat you as a Retail Client, subject to the following:
(a) if you satisfy the definition of Wholesale Client, and on provision of any certification as required by the FSPR Act, we will notify you in writing that we will treat you as such. In that case you should be aware that some of the protections that apply to Retail Clients as set out in these Terms of Business will not be available to you; and
(b) You may request a different client classification from the one we have allocated to you. We will advise you in writing if we, in our sole discretion, decide to accept or decline your request;
5. Risk of Investment
At Schedule 2 of these Terms of Business you are provided with a General Risk Disclosure Notice ("Risk Notice"). This Risk Notice sets out the investment risks of investing in complex financial instruments (such as Margined Transaction trading). Your execution of this document will be treated as your informed acknowledgment that you have carefully read and are prepared to accept the risks outlined in the Risk Notice. We recommend that you seek independent financial advice regarding the suitability of complex financial instrument trading for you.
5.1 referral risk disclosure
Please note that this section 5.1 is applicable only if your account was referred to Formax by a broker who is independent of Formax ("Referring Broker").
Formax and a referring broker are wholly separate and independent from one another. Your agreement between Formax and a referring broker does not establish a joint venture or partnership and a referring broker is not an agent or employee of Formax.
(a) We do not control, and cannot endorse or vouch for the accuracy or completeness of any information or advice you may have received or may receive in the future from a Referring Broker or from any other person not employed by us regarding Margined Transaction trading or the risks involved in such trading.
(b) We provide the risk disclosure information in Schedule 1 to all new clients when they open Accounts. You should read that information carefully, and should not rely on any information to the contrary from any other source.
(c) By executing these Terms of Business you acknowledge that no promises have been made by us or any individual associated with us regarding future profits or losses in your account. You understand that Margined Transaction trading is very risky, and that many people lose money trading. You confirm that you have had the opportunity to seek independent financial advice before agreeing to these Terms of Business.
(d) If a Referring Broker or any other third party provides you with information or advice regarding Margined Transaction trading, we will not be responsible for any loss to you resulting from your use of such information or advice.
(e) To the extent you have previously been led to believe or currently believe that utilizing any third party trading system, course, program, research or recommendations provided by a referring broker or any other third party will result in trading profits, you hereby acknowledge, agree and understand that all Margined Transaction trading, including trading done pursuant to a system, course, program, research or recommendations of a Referring broker or another third party involves a substantial risk of loss. In addition, you hereby acknowledge, agree and understand that the use of a trading system, course, program, research or recommendations of a Referring Broker or another third party will not necessarily result in profits, avoid losses or limit losses.
(f) You understand that a Referring Broker and many third party vendors of trading systems, courses, programs, research or recommendations are not regulated by a government agency.
(g) Because the risk factor is high in Margined Transaction trading, you should only use genuine "risk" funds in such trading. If you do not have the extra funds that you can afford to lose, you should not take part in Margined Transaction trading.
(h) You understand and acknowledge that we may compensate a Referring Broker for introducing you to us and that such compensation may be on a per-trade basis or other basis. Such compensation to a Referring Broker may require you to incur a mark-up, above and beyond the ordinary spread generally provided by us. Furthermore, you have a right to be informed of the precise nature of such remuneration.
(i) We do not endorse or vouch for the services provided by a Referring Broker. Since a Referring Broker is not our employee or agent, it is your responsibility to perform necessary due diligence on a Referring Broker prior to using any of their services.
(j) You understand and agree that if your Account with us is introduced by a Referring Broker, that Referring Broker may be provided access to certain personal information about you as well as certain information concerning trading activity in your Account with us and you agree that the Referring Broker may be provided with a copy of your application. A Referring Broker will not have the right to enter into any trades on your Account with us unless specifically authorized by you through execution of a limited power of attorney granting the Referring Broker permission to make trading decisions for your Account, a copy of which needs to be attached to your Account Opening Form.
Should you have any questions regarding the risks of trading Margined Transaction trading, please contact us, we recommend that you seek independent financial advice before taking part in Margined Transaction trading.
6. Applicable Regulations, Market and Stock Exchange Requirements
6.1 Subject to Applicable Regulations: These Terms of Business and all trading are subject to Applicable Regulations so that: (i) if there is any conflict between these Terms of Business and any Applicable Regulations, the latter will prevail; and (ii) we may take or omit to take any action we consider necessary to ensure compliance with any Applicable Regulations and whatever we do or fail to do in order to comply with them will be binding on you.
6.2 Market, price providing bank, and Stock Exchange action: If a market, price providing bank, or Stock Exchange (or intermediate broker or agent, acting at the direction of, or as a result of action taken by, a market or Stock Exchange) takes any action which affects a Transaction, then we may take any action which we, at our discretion, consider desirable to correspond with such action or to mitigate any loss incurred as a result of such action. Any such action will be binding on you.
7. Execution and Advice
7.1 Execution only: We deal with you on an execution-only basis and will not make personal recommendations or advise on the merits of purchasing, selling or otherwise dealing in particular Investments or executing particular trading, their taxation consequences or the composition of any Account or any other rights or obligations attaching to such Investments or trading. You should bear in mind that merely explaining the terms of a Transaction or Investment or its performance characteristics does not itself amount to advice on the merits of the Investment.
7.2 Incidental information: Where we do provide general trading recommendations, market commentary, guidance on shareholding disclosure or other information:
(a) This is incidental to your dealing relationship with us. It is provided solely to enable you to make your own investment decisions and does not amount to a personal recommendation or advice;
(b) We give no representation, warranty or guarantee as to the accuracy or completeness of such information or as to the legal, tax or accountancy consequences of any Transaction;
(c) Where information is in the form of a document containing a restriction on the person or category of persons for whom that document is intended or to whom it is distributed, you agree that you will not pass it on contrary to that restriction.
8. Charges and Payments
8.1 Charges: You will pay our charges as agreed with you and notified in writing from time to time or we may deduct such charges from any funds held by us on your behalf.
8.2 Currency indemnity: If we receive or recover any amount in respect of an obligation of yours in a Currency other than that in which such amount was payable, whether pursuant to a judgment of any court or otherwise, you will indemnify us and hold us harmless from and against any cost (including costs of conversion) and loss suffered by us as a result of receiving such amount in a Currency other than the Currency in which it was due.
8.3 If you direct Formax to enter into any Currency Transaction:
(a) Any profit or loss arising as a result of a fluctuation in the exchange rate affecting such Currency will be entirely for your account and risk;
(b) Formax is authorised to convert funds in your Account for Margin into and from such foreign Currency at a rate of exchange determined by Formax on the basis of the then prevailing money market rates. In such circumstances, Formax will not be liable to you for any loss suffered by you as a result of such action (although, Formax will use reasonable endeavors, at our sole discretion, to only convert such funds as may prudently be required to cover the position in respect of the relevant Transaction).
8.4 Payments and deliveries net: Unless we give you written notice to the contrary, all payments and deliveries between us will be made on a net basis and we will not be obliged to deliver or make payment to you or both (as the case may be) unless and until we have received from you the appropriate documents or cleared funds.
8.5 Remuneration and sharing charges: We may receive remuneration from, or share charges with, an Affiliate or other third party in connection with trading carried out on your behalf. Details of such remuneration or sharing arrangements will be made available to you on written request.
9.1 You are responsible for all taxes that may arise in relation to a Transaction, whether undercurrent or changed law or practice. We will have no responsibility for any of your tax liabilities, or for providing information or advice in respect of such liabilities and will not be responsible for notifying you of a change in tax law or practice.
9.2 In the event that we become liable to pay any tax on your behalf arising from or incidental to trading executed for you by us you will reimburse us on demand in full for the amount of such tax paid by us or we may deduct such charges from any funds held by us on your behalf. In the event that we become liable to pay any stamp duty, stamp duty reserve tax or any other similar documentary tax or duty in any jurisdiction (collectively "Stamp Duty") in respect of any shares purchased or otherwise acquired by us or an Affiliate in order to hedge any Margined Transaction between us and you, you will reimburse us on demand in full for the amount of such Stamp Duty paid by Formax or we may deduct such charges from any funds held by us on your behalf.
9.3 You will indemnify us and keep us indemnified from and against all costs, claims, demands and expenses arising in connection with (i)any failure by you to reimburse us in accordance with clause 9.1 and 9.2 of these Terms of Business; and (ii) any late payment or non-payment of any tax or Stamp Duty payable by you in respect of Transaction executed by you with us.
10. Material Interest and Confidentiality
10.1 Material interests: Your attention is drawn to the fact that when we deal with you or for you, we or an Affiliate or some other person connected with us may have an interest, relationship or arrangement that is material. Without limiting the nature of such interests, examples include where we or an Affiliate could be:
(a) Dealing in the Investment, a related Investment or an asset underlying the Investment, as principal for our (or its) own account or that of someone else. This could include selling to you or buying from you and also dealing with or using the services of an intermediate broker or other agent who may be an Affiliate;
(b) Matching (e.g. by way of a cross) your Transaction with that of another customer by acting on his or her behalf as well as yours;
(c) Buying from you and selling immediately to another customer, or vice versa;
(d) Holding a position (including a short position) in the Investment concerned, a related Investment or an asset underlying the Investment;
(e) Quoting prices to the market in the Investment, a related Investment or an asset underlying the Investment;
(f) Advising and providing other services to Affiliates or other customers who may have interests in Investments or underlying assets which conflict with your own.
10.2 You accept that we and our Affiliates may have interests which conflict with your interests and may owe duties which conflict with duties which would otherwise be owed to you, and consent to our acting in any manner which we consider appropriate in such cases subject to Applicable Regulations.
10.3 No liability to disclose or account: We will comply with Applicable Regulations binding on us, but we will be under no further duty to disclose any interest to you, including any benefit, profit, commission or other remuneration made or received by reason of any Transaction or any matching transaction.
10.4 Information barriers: We maintain arrangements which restrict access by our employees to information relating to areas of our business (and that of Affiliates) with which, and the affairs of clients with whom, they are not directly concerned. Accordingly, we will not be required to have regard to or disclose to you or make use of any information which belongs to or is confidential to another client or to us or any Affiliate, and we may be unable to advise or deal with you in relation to particular Investments without disclosing the reason for this.
10.5 Deals using a Connected Broker: Where a material connection exists between us and a broker ("Connected Broker"), you hereby agree that you do not require us to give you notice of that connection.
11. Conflict of Interests
11.1 Conflicts Policy: We have arrangements in place to manage conflicts of interest between us and our Clients and between different Clients. We operate in accordance with a conflicts of interest policy we have put in place for this purpose under which we have identified those situation in which there may be a conflict of interest, and in each case, the steps we have taken to manage that conflict. A summary of our conflicts policy is available on the Formax Online Facility. Further details of this will be provided on request.
11.2 Disclosure to you: We will not be obliged to disclose to you or take into consideration any fact, matter or finding which might involve a breach of duty or confidence to any other person, or which comes to the notice of any of our directors, officers, employees or agents but does not come to the actual notice of the individual or individuals dealing with you.
12. Market Abuse
12.1 Market abuse: By entering into any Transaction you represent and warrant that you will act in accordance with any Applicable Regulations, you are not acting in any way which is intended to or may be considered to be "market abuse", nor are you acting with the intention of contravening any Applicable Regulations.
13. Account Opening
13.1 An Account must be opened prior to entering into any Transaction with Formax. No Orders can be placed until an Account has been opened and sufficient cleared funds received from you as we may require. Without prejudice to the foregoing, if Formax permits you to place an Order notwithstanding that an Account has not been opened, or cleared funds received, this will not limit your liability to Formax pursuant to these Terms of Business in respect of the Order placed. Formax may, at its absolute discretion, refuse to accept you as a client for whatever reason but will notify you of any such refusal, without giving any reasons, promptly following your application.
13.2 To assess your credit worthiness, manage credit risk and aim to prevent fraud (or other criminal activity) you acknowledge and agree that we may:
(a) Verify your identity by requiring you to provide the information set out in the Account Opening Forms. Formax may not be able to open an Account for you if you do not provide it with the required identity verification information;
(b) Make periodic searches and enquiries about you and any Related Party at credit reference agencies, and your employers, if applicable;
(c) Disclose information to organizations involved in fraud prevention;
(d) Obtain information from and disclose information to other broker-dealers or investment managers which deal in or manage investments for you concerning any payment or security default or concerning any Investment which is related to or connected with Margined Transaction trading which you seek to open with us.
13.3Any limits for your Account (including any credit limits) will be set and varied from time to time by us with regard to your credit status and, where applicable, the amount of funds deposited by you with us. We may, in our sole discretion apply a limit to:
(a) The size of any Transaction or series of trading that you may enter into; and
(b) The amount of any loss or liability to which you may be exposed.
13.4 Account limits do not limit or represent your liability for losses to Formax, and the funds you may have from time to time on deposit with us as Margin or otherwise do not represent any limit on your financial liability to us.
13.5 One client can only open one Account.
14. Account Payments
14.1 Payment: We will only accept deposits from you by an approved credit card, crossed cheque, BACS, telegraphic transfer and SWIFT. No cash will be accepted. Payments may be denominated in NZ Dollars, UK Pounds Sterling, US Dollars, Euros, or any other Currency agreed in advance with us.
14.2 Payment Terms: You agree to make payments due to us under these Terms of Business in accordance with the following terms:
(a) All electronic or telegraphic transfer or other bank fees in respect of payment by you will be your sole responsibility;
(b) If any payment is not received by us on the due date for payment then, without limitation of any other rights which we may have, we will be entitled to charge interest on the overdue amount (both before and after any judgment in our favour) at the Interest Rate from the date payment was due until the actual date of payment;
(c) If you make a payment by an approved credit card and then request that payment to be returned to the approved credit card, we reserve the right to charge an administration fee (details of which are available on request);
(d) You will pay to us on demand in a full indemnity basis all costs, charges, and expenses incurred by us in relation to any overdue payment (including any referral fees);
(e) Any payment made to us will only be deemed to have been received when we receive cleared funds; and
(f) It is your responsibility to ensure that payments made to us are correctly designated in all respects.
14.3 Payment withheld: If the statement of your Account shows a credit balance, you may request us to send you a cheque or effect payment by alternative means in respect of such amount. However, we may at our discretion elect to withhold (or if applicable, deduct) any payment requested (in whole or in part) due to you if:
(a) Open Margined Transaction trading on your Account shows notional losses;
(b) We reasonably consider that funds may be required to meet any current or future Margin requirement on open Margined Transaction trading due to underlying market conditions;
(c) You have any contingent liability to us or to any of our Affiliates in respect of any other Account(including in respect of tax or any other charges) you have opened with them; and/or
(d) We reasonably determine that there is an unresolved dispute between us in connection with these Terms of Business or any related contract.
14.4 Base Currency: You will designate a base Currency of your Account which will either be NZ Dollars, UK Pounds Sterling, US Dollars, Euros, or any other Currency agreed in advance with us (the "Base Currency"). Any sums deposited in your Account, if in a Currency other than the Base Currency of the Account, may be converted to that Base Currency at the prevailing conversion rate as designated by us unless alternative instructions from you are accepted by us. If any interest costs, commission and other charges to be debited to your Account are in a currency other than the Base Currency they may be converted to that Base Currency at the prevailing conversion rate as designated by us.
14.5 All payments from your Account will be made on your request in the Base Currency of that Account unless another Currency is agreed in advance between you and us and may be made in the form of a return payment to a credit card, crossed cheque naming you, via BACS transfer, Telegraphic Transfer or SWIFT. We will not be obliged to make any payment to you unless we are satisfied, at our discretion, that your cash balance remaining after making the payment would be sufficient to cover your Margin and any unrealised losses in relation to your open Margined Transaction trading.
14.6 No instructions to pay a third party from your Account will be accepted by us unless otherwise agreed in writing by us.
14.7 In the event the applicable paying agent declines to transfer funds from you to us for any reason then we may treat any Margined Transaction placed or entered into in reliance upon receipt of the funds as void and of no further effect and we will be entitled to recover any losses arising from any such Margined Transaction from you.
14.8 Your cash balance:
(a) Will be credited from time to time with the amount of each payment of Margin and any other payment received by us from you pursuant to these Terms of Business; and
(b) Will be debited by:
(i) The amount of each payment made by us to you at the your request pursuant to clause 14 of these Terms of Business; and
(ii) Realised losses payable.
14.9 You hereby indemnify and hold us harmless against any costs or expenses (including all legal costs on a solicitor and client basis) which we may incur in connection with the enforcement or attempted enforcement of these Terms of Business, either before or after the commencement of any legal action, to recover any payment owed by you under these Terms of Business. We may convert money standing to your credit on your Account or paid by you to us or due to be paid by us from one currency to another at prevailing market rates available to us (after accounting for Commissions or charges).
15.1 Margin Arrangements: As a condition of entering into a Margined Transaction, we may in our sole discretion require the deposit of funds or other collateral acceptable to us as security for payment of any losses incurred by you in respect of the Transaction ("Initial Margin"). Initial Margin is due and payable immediately as a condition to opening the relevant Margined Transaction and we may decline to open any Margined Transaction if you do not have sufficient available cash in your Account to satisfy the Initial Margin required for that Transaction at the time the relevant Order is placed.
15.2 Margin requirements may be set by us and varied without prior notice from time to time at our discretion including, without limitation, subsequent variation of any Margin rates set at the time that a Margined Transaction is opened ("Variation Margin" and together with Initial Margin, "Margin").
15.3 Form of Margin: Margin will be provided by or on behalf of you in cash or collateral acceptable to us as determined by us in our absolute discretion. You must inform us immediately if you cannot, or believe you will not be able to, meet a Margin payment when due. You are obligated to maintain in your Account, at all times, sufficient funds to meet all Margin requirements. We are not obliged to make Margin Call Warnings at all or within any specific time period. You may by written agreement with us satisfy a Margin Call Warning by providing collateral in a form acceptable to us. In addition we will be entitled to treat any assets deposited with us by you from time to time (other than assets deposited for safe custody only) as collateral against your Margin requirements. In all cases we will be entitled in our sole discretion to determine the value of any collateral deposited with us.
15.4 We are entitled to require of you payment of Margin by telegraphic transfer or any other method of immediate/electronic funds transfer acceptable to us. Only clear funds received net of any bank charges, which relate to the transfer, will be credited as paid.
15.5 Close-out: In the event that there is insufficient Margin in your Account or in the event that the deposited Margin is not sufficient to meet the required Margin rates, as determined by us in accordance with clause 15.2 of these Terms of Business, we may in our sole discretion choose to close or terminate your Margined Transaction immediately, without notice to you. Subject to clauses 15.6 and 15.8 of these Terms of Business, this will not constitute an Event of Default. If we choose not to close or terminate your Margined Transaction, we may make a Margin Call Warning in accordance with clause 15.7 of these Terms of Business.
15.6 Without prejudice to the foregoing, any Transaction entered into by you or on your behalf which results in there being insufficient Margin to cover any actual or anticipated losses or liabilities in connection with your Account will constitute an Event of Default and we may in our discretion exercise our rights in clause 23 of these Terms of Business, whether there has been a Margin Call Warning or not.
15.7 Margin Call Warnings: Notwithstanding the fact that we are not obliged to make Margin Call Warnings prior to liquidating your Margined Transaction trading if you fail to maintain sufficient funds to meet the Margin requirements, Margin Call Warnings may be made at any time by telephone, telephone answering machine message, voice mail, letter, fax, e-mail or any other means of electronic communication in our sole discretion. Therefore you must notify us immediately and provide alternative contact details to ensure Margin Call Warnings can be made if you will not be contactable at your usual contact details provided, e.g. when you are traveling or on holiday. Any Margin Call Warnings we make of you may be made by any method of communication listed above. We will be deemed to have made a Margin Call Warning if we notify you electronically via the Formax Online Facility. We will not be liable for any failure by us to contact you or attempt to contact you. Should we decide to make a Margin Call Warning, the terms and conditions of the Margin Call Warning will be detailed within the Margin Call Warning and we reserve the right to change the terms and conditions of any Margin Call Warning based on market conditions, which will be notified to you on the Formax Online Facility. If we make a Margin Call Warning, in no way does this waive our right to liquidate your Margined Transaction trading as detailed in Section 15.5.
15.8 Any payment made by or on your behalf in satisfaction of a Margin Call Warning must be received by us within the time specified within the Margin Call Warning. We may in our sole discretion close or terminate your Margined Transaction trading without notice to you immediately and decline to enter into any further Margined Transaction trading with you if you fail to honour any Margin Call Warning and this will constitute an Event of Default and we may exercise our rights in clause 23 of these Terms of Business.
15.9 In the absence of formal arrangements to the contrary, we may be obliged to close your Margined Transaction in the event that a Margin Call Warning remains unsatisfied after a period of five (5) Business Days.
15.10 Security interest: As a continuing security for the performance of all your obligations (whether actual or contingent, present or future) to us under or pursuant to these Terms of Business ("Secured Obligations") you grant to us, with full title guarantee, a first fixed security interest in all present and after acquired non-cash Margin money, investment securities or other collateral now or in the future provided by you to us or to our order or under our direction or control or that of an Exchange or Market or otherwise standing to the credit of your account under these Terms of Business or otherwise held by us or our Affiliated Companies or our nominees on your behalf. You agree to waive your right to:
(a) Receive a copy of any verification statement or financing charge statement;
(b) Receive any notice that we intend to sell or retain any collateral on enforcement of the security interest granted to us under these Terms of Business;
(c) Object to us retaining the collateral, or to receive a statement of account on the sale of collateral; or
(d) Redeem the collateral subject to the security interest granted to us.
15.11 Further assurance: You agree to execute such further documents and to take such further steps as we may reasonably require to perfect our security interest over, be registered as owner of or obtain legal title to the Margin, secure further the Secured Obligations, enable us to exercise our rights, or
to satisfy any market requirement.
15.12 Substitution: You may not withdraw or substitute any property subject to our security interest without our consent.
15.13 Negative pledge: You undertake neither to create nor to have outstanding any security interest whatsoever over, nor to agree to assign or transfer, any of the Margin transferred to us, except a lien routinely imposed on all Securities in a clearing system in which such Securities may be held.
15.14 Power to charge: You agree that we may, free of any adverse interest of yours or any other person, grant a security interest over Margin provided by you to cover any of our obligations to an intermediate broker market or Stock Exchange, including obligations owed by virtue of the positions held by us or another of our customers.
15.15 Power of sale: If an Event of Default occurs, we may exercise the power to sell all or any part of the Margin subject (if applicable) to giving notice in accordance with section 129 of the Property Law Act 2007 if the Margin comprises "goods" as defined in the Personal Property Securities Act 1999. We will be entitled to apply the proceeds of sale or other disposal in paying the costs of such sale or other disposal and in or towards satisfaction of the Secured Obligations.
15.16 General lien: In addition and without prejudice to any rights to which we may be entitled under these Terms of Business or any Applicable Regulations, we will have a general lien on all property held by us or our Affiliates or our nominees on your behalf until the satisfaction of the Secured Obligations.
15.17 Any action taken by us in connection with or pursuant to a Margined Transaction at a time at which any Event of Default specified in clause 23 of these Terms of Business has occurred (whether or not we have knowledge thereof) will be entirely without prejudice to our right to refuse any further performance thereafter, and will not in any circumstances be considered as a waiver of that right or as a waiver of any other rights of ours should any such Event of Default have occurred.
16. Online Access
16.1 Access Code: In order to use the Formax Online Facility you will need to request a username and password ("Access Code") from Formax. You will need to provide the Access Code each time you wish to use the Online Facility.
16.2 In relation to the Access Code you acknowledge and undertake that:
(a) You will be responsible for the confidentiality and use of your Access Code.
(b) Other than with our prior written consent, you will not disclose your Access Code to persons other than your authorised representatives for any purpose whatsoever.
(c) Formax may rely on all instructions, orders and other communications entered using your Access Code, and you will be bound by any transaction entered into or expense incurred on your behalf in reliance on such instructions, orders and other communications;
(d) You will immediately notify us if you become aware of the loss, theft or disclosure to any third party or of any unauthorised use of your Access Code.
16.3 If Formax believes that your Access Code is being used without your knowledge by unauthorised persons, we may without prior notice suspend your rights to use the Formax Online Facility. Further, if Formax believe that you have supplied your Access Code to other persons in breach of clause 16.2(b) of these Terms of Business, then we may terminate these Terms of Business forthwith.
17. Instructions and Basis of Dealing
17.1 Communication of Orders: Orders by telephone will only be accepted by Formax during specified hours which will be notified to you from time to time. Formax may impose more restrictive time limits on when orders may be placed. When you place an order by telephone, you can do so only by talking directly to Formax. No messages may be left, and no orders may be placed using answer phone or voicemail facilities or by facsimile. All telephone calls are recorded for the purposes of fraud prevention and quality control and by agreeing to these terms and conditions you agree to the recording of such telephone conversations.
17.2 Any Order to execute a Transaction will not take effect unless actually received by Formax. Formax will be entitled to rely upon any instruction given or purporting to be given by you or any other person on your behalf without further enquiry as to the genuineness, permissions or identity of any such person giving or purporting to give such instructions.
17.3 Formax may, at its discretion refuse to accept any Order from you but will notify you of any such refusal, without giving any reasons, promptly following receipt of your instructions. Formax may cancel any instructions previously given by you provided that Formax has not acted on your instructions. Acceptance of your Order will be evidenced by Formax's confirmation of that Order. The validity of any Order will not, however, be affected by you not receiving confirmation of an Order. Acceptance of any Order does not constitute any agreement or representation that your Initial Margin or Margin requirement in respect of the Order or your existing Order is satisfied.
17.4 Regulated Market: You acknowledge and agree that by signing the signature page of these Terms of Business you have given us your prior express consent to execute all Orders outside any regulated market or multi-lateral trading facility.
17.5 Confirmations: Formax may post confirmations on-line, which you will be able to access using the Formax Online Facility. Formax will post details of your Account activity on-line and you will be able to generate daily, monthly and yearly reports of Account activity as well as reports of each executed trade. Updated Account information will be available no more than twenty-four hours after any activity takes place on your Account. Posting of Account information on your on-line Account will be deemed delivery of confirmation and Account statements. Account information will include trade confirmations with ticket numbers, purchase and sale rates, used Margin, amount available for Margin Transaction trading, statements of profits and losses, as well as current open or pending positions and any other relevant information. Please notify us if you wish to receive confirmations in hard copy or by e-mail rather than through the Formax Online Facility. Confirmations will, in the absence of manifest error, be conclusive and binding on you, unless we receive from you objection in writing within three (3) Business Days of dispatch to you or we notify you of an error in the confirmation within the same period.
17.6 Intermediate brokers and other agents: We may, at our entire discretion, arrange for any Transaction to be effected with or through the agency of an intermediate broker, who may be an Affiliate of ours, and may not be in New Zealand. Neither we nor our respective directors, officers, employees or agents will be liable to you for any act or omission of an intermediate broker or agent. No responsibility will be accepted for intermediate brokers or agents selected by you.
17.7 Best Execution: All Orders will be executed in compliance with our Order Execution Policy, a copy of which we have separately provided on the Formax Online Facility, which may be amended from time to time. Each time you enter an Order you are deemed to have agreed to our Order Execution Policy.
17.8 Aggregation of orders: To the extent that we expressly agree in writing to execute Orders on your behalf, we may combine your Order with any Orders of our own and Orders of other customers. By combining your Orders with those of other customers we must reasonably believe that this is in the overall best interests of our customers. However, on occasions aggregation may result in you obtaining a less favourable price. Where we aggregate your Order with Orders of other customers, you agree that allocation of the Investments concerned may be done within a period of five (5) Business Days after the Order has been filled. Where an Order for a particular customer has been aggregated with Orders for another customer, we will take great care to ensure a fair allocation of Investments available across those Orders. Where there is an insufficient quantity of Investments available to fill all Orders any allocation undertaken by us will be:
(a) Completely even across all interested parties;
(b) Take account of the time of receipt of an Order such that Orders are allocated in due turn;
(c) Take account of the size of each Order with allocation being in proportion to the relative Order sizes.
17.9 Execution Errors: All orders executed by Formax should be displayed on Formax's Online Facility. Any failure or delay in any Order being displayed on Formax's Online Facility will not affect the validity of the Order. If Formax has executed an Order, but it is not displayed, it is solely your responsibility to make further inquiry of the Formax Online Facility to obtain confirmation of the execution of the Order. Any failure or delay by you in contacting Formax will not affect the validity of any Order. Once an Order has been executed, you should be deemed to have entered into a corresponding contract with Formax whether or not the corresponding Order is displayed on the Formax Online Facility.
17.10 If you incorrectly or erroneously submit an Order which is executed, you will notify Formax of the error immediately upon becoming aware of the error. You will also notify Formax at the same time whether you wish Formax in respect of the error trade to either:
(a) Maintain the contract in your name with Formax in the same size and at the same price as the executed order; or
(b) Reverse the executed Order.
You agree that any loss from reversing the Order will be for your account.
18.1 Before accepting any Order, you must record your investment knowledge and experience in the Account Opening Forms.
18.2 On the basis of this information and in accordance with any Applicable Regulations we will assess, in our sole discretion, whether we are prepared to open Account for you and whether you are to be treated as a Wholesale or Retail Client. We will not be able to take your borrowings or leverage into account in assessing your investment risk appetite or capacity. You should be aware that leverage may dramatically increase the risk of Investments, particularly where large positions can be taken in reliance on a small amount of Initial Margin, as is common when dealing in Margined Transaction trading. Where you are classified as a Wholesale Client we will make certain assumptions about the appropriateness of the service provided, and we are entitled to assume that you have the requisite knowledge and experience in the relevant investment field. If you do not consider this to be the case, you must make us aware of this prior to the provision of the service and provide us with any available information as to the level of your knowledge and experience. It is your responsibility to inform us in writing of any information which might reasonably indicate that this assessment should be changed.
19. Title Transfer
The following provisions of this clause will apply to you only if you are classified by Formax as a Wholesale Client.
19.1 You acknowledge and agree that title in and/or ownership of all of the money you deposit with Formax will be transferred to Formax for the purpose of securing or covering your present, future, actual, contingent or prospective obligations, and we will not hold such money in accordance with the Client Money Rules. Any money received by us from you or a third party for your account will be owed by us to you, even where we are acting as your agent. Because the Client Money Rules will not apply, you do not have a proprietary claim over money transferred to us, and we can deal with it in our own right. We will transfer an equivalent amount of money back to you where the money is due to be repaid to you or, in our sole and absolute discretion, we consider that the amount of money you have transferred to us is more than what is necessary to cover your present, future, actual, contingent or prospective obligations to us. In determining the amount of collateral and the amount of our obligations to you, we may apply such methodology (including judgments as to the future movement of markets and values), as we consider appropriate, consistent with any Applicable Regulations.
19.2 By placing money with Formax, you agree that all money transferred into your Account is done so in anticipation of a Transaction with us and therefore has the purpose of securing or covering your present, future, actual, contingent or prospective obligations to us. You should not place any money with Formax that is not for the purpose of securing or covering your present, future, actual, contingent or prospective obligations to us.
19.3 You expressly acknowledge that any money you transfer to us will not be segregated from Formax's own money, and that you will rank as a general creditor of Formax in the event of in solvency or an equivalent failure.
19.4 You acknowledge and agree that Formax will not pay interest on any money you deposit with Formax or held by Formax, whether received form you or not, on your account. You expressly waive any entitlement to be paid interest.
20. Client Money
The following provisions of this clause will apply to you only if you are classified by Formax as a Retail Client.
20.1 Trust Funds
All money received from the Client or a person authorised by the Client is held by Formax in Trust in as designated "Trust Account" held at a registered bank.
20.2 Subject to these Terms of Business, we will treat money received from you or held by us on your behalf in accordance with this section (the "Client Money Rules"). Client Money will be held in trust in a bank account that is separate from Formax's money under arrangements designed to ensure that Client Money is easily identified as money belonging to clients.
20.3 Formax will:
(a) Account to you properly for that money;
(b) keep trust account records that clearly disclose the position of the money in that trust account in a manner that enables those records to be conveniently and properly audited or inspected;
(c) Only use that money in accordance with these Terms of Business;
(d) Subject to any lien or claim that Formax may have in accordance with these terms of Business:
(i) Ensure that client money is not available for payment of Formax' debts or any creditor of Formax;
(ii) Ensure that money is not able to be attached or taken in execution in the
Order or process of any court at the instance of a creditor of Formax; and/or
(e) Only allow a third party, such as an exchange, a clearing house or an intermediate broker, to hold or control Client Money where we transfer the Client Money for the purposes of a Transaction for you through or with that party, or to meet your obligations with that party (for example, a Margin requirement).
20.4 You acknowledge and agree that Formax will not pay you interest on Client Money or any other unencumbered funds and you expressly waive any entitlement to be paid interest.
20.5 Formax is not responsible for the solvency, acts or omissions of any bank or other third party with which Client Money is held.
20.6 You agree that Formax may cease to treat as Client Money any balance held by us on your behalf where we have determined that there has been no movement on the balance for a period of six years (notwithstanding any payments or receipts of charges, interest or similar items) and we are unable to trace you after taking reasonable steps to contact you, in which case the provisions of the Unclaimed Money Act 1971 will apply.
20.7 Authorised deductions
The Client agrees that Formax is entitled to:
(a) Withdraw, deduct or apply any amounts payable by the Client to Formax and/or any associate of Formax from Client moneys held in Trust or invested by Formax including, without limitation, making a payment for, or in connection with, the margining, adjusting or settling of dealings on Contracts entered into by the Client, or the payment of finance charges, commissions or interest to Formax with all such amounts belonging to Formax; and/or
(b) Use the funds held in Trust to manage Formax’s dealings with an authorised hedging counterparty with respect to client positions. The Client further notes and agrees that money moved from the Trust Account to an authorised hedging counterparty is no longer held in trust and is not protected should the hedging counterparty become insolvent.
(c) Deal with any property, other than money, given to Formax by the Client, in such manner as Formax in our sole discretion consider appropriate in consideration and in connection with the margining, adjusting or settling of dealings in Contracts with us or selling or charging any or all of such property that may be in our control following a Default Event.
(d) Retain all interest earned on client money held in Trust with a bank, approved deposit taking institution and/or exchange clearing house.
21. Net Payment
21.1 We may at any time set off any liabilities to make payment owed by us to you against any liability of yours to make payment to us.
Representations and Undertakings
22. Representations, Warranties and Covenants
22.1 Representations and warranties: You represent and warrant to us on the date that you sign these Terms of Business and as of the date of each Transaction that:
(a) If you are an individual, you are of sound mind, legal age and legal competence;
(b) Regardless of any subsequent determination to the contrary, your financial circumstances are suitable to undertake Margined Transaction trading and that you are aware of the risks involved with such trading;
(c) You have had the opportunity to seek independent financial advice before agreeing to these Terms of Business;
(d) You have all necessary permissions, powers, consents, licences and authorisations and have taken all necessary action to enable you lawfully to enter into and perform these Terms of Business and such Transactions and to grant the security interests and powers referred to in these Terms of Business;
(e) Any change to the details supplied on your Account Opening Forms must be immediately notified to us in writing;
(f) The persons entering into these Terms of Business and each Transaction on your behalf have been duly authorised to do so;
(g) These Terms of Business, each Transaction and the obligations created under them both are binding upon you and enforceable against you in accordance with their terms (subject to applicable principles of equity) and do not and will not violate the terms of any regulation, order, charge or agreement by which you are bound;
(h) No Event of Default or any event which may become (with the passage of time, the giving of notice, the making of any determination or any combination of the above) an Event of Default (a "Potential Event of Default") has occurred and is continuing with respect to you or any Credit Support Provider;
(i) Unless you have informed us otherwise you act as principal and sole beneficial owner (but not as trustee) in entering into these Terms of Business and each Transaction;
(j) Any information which you provide or have provided to us in respect of your financial position or other matters is accurate and not misleading in any material respect;
(k) You are willing and financially able to sustain a total loss of funds resulting from trading;
(l) You have consistent and uninterrupted access to internet service and the e-mail address provided on your Account Opening Forms;
(m) Except as otherwise agreed by us, you are the sole beneficial owner of all Margin you transfer under these Terms of Business, free and clear of any security interest whatsoever other than a lien routinely imposed on all Securities in a clearing system in which such Securities may be held; and
(n) If you are not a resident in New Zealand, you are solely responsible for ascertaining whether any Transaction entered into under these Terms of Business is lawful under applicable laws of the jurisdiction of your residence.
22.2 Covenants: You covenant to us that:
(a) You will at all times obtain and comply, and do all that is necessary to maintain in full force and effect, all permissions, powers, consents, licences and authorisations referred to in this clause;
(b) You will promptly notify us of the occurrence of any Event of Default or Potential Event of Default with respect to yourself or any Credit Support Provider;
(c) You will use all reasonable steps to comply with all Applicable Regulations in relation to these Terms of Business and any Transaction, in so far as they are applicable to you or us;
(d) Upon demand, you will provide us with such information as we may reasonably require to evidence the matters referred to in this clause or to comply with any Applicable Regulations; and
(e) The information disclosed in your Account Opening Form (including any financial information) is true, accurate, and complete in all material respects. You must notify Formax immediately of any changes to any information you have provided to Formax.
23. Events of Default
23.1 If at any time:
(a) You fail to comply fully and immediately with any obligation to make any payment when due under these Terms of Business or to make or take delivery of any property when due under these Terms of Business;
(b) We have reasonable grounds to believe that you are in breach of any material provision of these Terms of Business, or, if, within 3 days of written notice to you from us, specifying a breach or default under these Terms of Business, you fail to rectify or remedy that breach or default;
(c) We consider it necessary or desirable for our own protection or any action is taken or event occurs which we consider might have a material adverse effect upon your ability to perform any of your obligations under these Terms of Business;
(d) We consider it necessary or desirable to prevent what is considered to be or might be a violation of any Applicable Regulations or good standard of market practice;
(e) You die, become of unsound mind, are unable to pay your debts as they fall due or are bankrupt or insolvent, as defined under any bankruptcy or insolvency law applicable to you, or any indebtedness of yours is not paid on the due date therefore or becomes capable at any time of being declared due and payable under agreements or instruments evidencing such indebtedness before it would otherwise have been due and payable, or any suit, action or other proceedings relating to these Terms of Business are commenced for any execution, any attachment or garnishment, or distress against, or an encumbrancer takes possession of, the whole or any part of your property, undertaking or assets (tangible and intangible);
(f) You commence a voluntary case or other procedure seeking or proposing liquidation, reorganisation, an arrangement or composition, a freeze or moratorium, or other similar relief with respect to you or your debts under any bankruptcy, insolvency, regulatory, supervisory or similar law (including any corporate or other law with potential application to you, if insolvent), or seeking the appointment of a trustee, receiver, liquidator, conservator, administrator, insolvency officer or other similar official (each an "Insolvency Officer") of you or any substantial part of your assets, or if you take any corporate action to authorise any of the foregoing;
(g) An involuntary case or other procedure is commenced against you seeking or proposing liquidation, receivership, administration, statutory management, reorganisation, an arrangement or composition, a freeze or moratorium, or other similar relief with respect to you or your debts under any bankruptcy, insolvency, regulatory, supervisory or similar law (including any corporate or other law with potential application to you, if insolvent) or seeking the appointment of an Insolvency Officer of you or any substantial part of your assets;
(h) You or any Credit Support Provider (or any Insolvency Officer acting on behalf of either of you) disaffirm, disclaim or repudiate any obligation under these Terms of Business or any guarantee, hypothecation agreement, margin or security agreement or document, or any other document containing an obligation of a third party, or of you, in favour of us supporting any of your obligations under these Terms of Business (individually a "Credit Support Document");
(i) Any representation or warranty made or given or deemed made or given by you under these Terms of Business or any Credit Support Document proves to have been untrue, false or misleading in any material respect as at the time it was made or given or deemed made or given;
(j) Any Credit Support Provider fails to comply with or perform any agreement or obligation to be complied with or performed by you or it in accordance with the applicable Credit Support Document;
(i) Any Credit Support Document expires or ceases to be in full force and effect prior to the satisfaction of all your obligations under these Terms of Business, unless otherwise agreed in writing by us;
(ii) Any representation or warranty made or given or deemed made or given by any Credit Support Provider pursuant to any Credit Support Document proves to have been false or misleading in any material respect as at the time it was made or given or deemed made or given;
(iii) Any event referred to in paragraphs (d) to (g) or (j) of sub-clause 1 of this clause occurs in respect of any Credit Support Provider; or
(iv) You are dissolved, or, if your capacity or existence is dependent upon a record in a formal register, the registration is removed or ends, or any procedures are commenced seeking or proposing your dissolution, removal from such a register, or the ending of such a registration;
(k) Where you or your Credit Support Provider is a partnership, any of the events referred to in paragraphs (d) to (g) or (j) of sub-clause 1 of this clause occurs in respect of one or more of your or its partners;
(l) An Event of Default (however described) occurs in relation to you under any other agreement between us;
Then we may exercise our rights under clause 23.2 of these Terms of Business.
23.2 Upon occurrence of an Event of Default we may by notice specify a date for the termination of any outstanding trading entered into between us except that the occurrence of an Event of Default under subparagraphs (d) to (g) or (j) of clause 23.1 will result in the automatic termination of any outstanding Transaction. Neither of us will be obliged to make any further payments or deliveries under any trading which would but for this clause, have fallen due for performance on or after the termination of any outstanding trading. We will be entitled without prior notice to you:
(a) Instead of returning to you Investments equivalent to those credited to your Account, to pay to you the fair market value of such Investments at the time we exercise such right;
(b) To sell your Investments in our possession or in the possession of any nominee or third party appointed under or pursuant to these Terms of Business, in each case as we may in our absolute discretion select or and upon such terms as we may in our absolute discretion think fit (without being responsible for any loss or diminution in price) in order to realise funds sufficient to cover any amount due by you hereunder;
(c) To close out, replace or reverse any Transaction, buy, sell, borrow or lend or enter into any other Transaction or take, or refrain from taking, such other action at such time or times and in such manner as, at our sole discretion, we consider necessary or appropriate to cover, reduce or eliminate our loss or liability under or in respect of any of your contracts, positions or commitments;
(d) To realize in accordance with this clause or to sub-pledge any securities or other assets of yours held by Formax;
(e) To call on any guarantee or indemnity provided by or on behalf of you;
(f) To exercise our rights of set-off pursuant to this clause;
(g) To close any and all of your Accounts;
(h) To treat any or all trading then outstanding as having been repudiated by you, in which event our obligations under such Transaction or trading will thereupon be cancelled and terminated.
23.3 We will not lose any of our rights under this clause by reason of any delay on our part in the exercise thereof, but in no circumstance will we be under any obligation under these clauses to exercise any such right or, if we do exercise any such right, to do so at a time or in a manner beneficial to you. We may at our absolute discretion close out trading either on a single or collective basis.
23.4 Where we exercise our right under this clause to close out a Transaction the closing out will be effected by us in whole or in part at such time or times and at such price or prices as determined by us at our reasonable discretion. The amounts payable under the Transaction being closed out will then be immediately due.
23.5 Where we exercise our right under this clause to realise any Investments or other assets of yours held by us, we will be entitled to sell those Investments or assets at the market price (as determined by us in our reasonable discretion) at the time the sale takes place. We will have the right to choose the time, place and method of such sale at our discretion. Any costs of sale will be borne by you.
23.6 If any Event of Default specified in this clause occurs, we may by notice in writing to you require settlement of all open trading to take place in accordance with this clause on the settlement date which for this purpose will be the date on which notice is given.
23.7 Where settlement of all trading is to be made under this clause no further payments will be made in respect of any open Transaction after the settlement date and each open Transaction will immediately be settled by your payment of the settlement amount.
23.8 You will give us notice of an event specified in clause 23.1 as soon as you become aware of its occurrence.
23.9 We will be entitled, following any of the events specified in clause 23.1 To set-off (i) any obligation to make payment to you against any obligation owed by you to make payment to any Affiliate; and (ii) any obligation of yours to make payment to us against any obligation of any Affiliate to make payment to you.
23.10 Any obligations will be satisfied by the net settlement (whether by payment, set-off or otherwise) of the amounts due between us with respect to all the outstanding terminated trading. With respect to each outstanding terminated Transaction we will determine its total cost, loss or gain (including, if appropriate, any loss of bargain, cost of funding or other loss or gain as a result of the termination) and any net amount for all the outstanding terminated trading determined by us in accordance with the foregoing due either from you to us or from us to you will be immediately payable upon its calculation. We will not be obliged to make any payment or delivery scheduled to be made by us under a Transaction or these Terms of Business for as long as an Event of Default has occurred and is continuing.
24.1 You may terminate these Terms of Business immediately by giving written notice to us.
24.2 We may terminate these Terms of Business with you by giving you ten (10) Business Days notice, except that we may terminate these Terms of Business immediately if you fail to observe or perform any provision of these Terms of Business, or upon the occurrence of any Event of Default, or if you have no open trading in your Account at the time when the notice of termination is sent. At any time after the termination of these Terms of Business, we may, without notice, close out any of your open trading at the end of day Closing Price.
24.3 Termination will be without prejudice to accrued rights and remedies and the existence and enforceability of any open Transaction, which will continue until close in accordance with these Terms of Business, unless otherwise specified.
24.4 On termination of these Terms of Business, all amounts payable by you to us will become immediately due and payable including (but without limitation):
(a) All outstanding fees, charges and Commissions;
(b) Any dealing expenses incurred by terminating these Terms of Business; and
(c) Any losses and expenses realised in closing out any trading or settling or concluding outstanding obligations incurred by us on your behalf.
24.5 Termination will not affect then outstanding rights and obligations (in particular those in clause 27 (Exclusions, Limitations and Indemnity) and clause 28 (Miscellaneous) to these Terms of Business) and trading which will continue to be governed by these Terms of Business and the particular clauses agreed between us in relation to such trading until all obligations have been fully performed.
25. Manifest Errors
25.1 A "Manifest Error" means a manifest or obvious misquote by us, or any market, Stock Exchange, price providing bank, information source, commentator or official on whom we reasonably rely, having regard to the current market conditions at the time an Order is placed. When determining whether a situation amounts to a Manifest Error, we may take into account all information in our possession including, without limitation, information concerning all relevant market conditions and any error in, or lack of clarity of, any information source or announcement.
25.2 We will, when making a determination as to whether a situation amounts to a Manifest Error, act fairly towards you but the fact that you may have entered into, or refrained from entering into, a corresponding financial commitment, contract or Transaction in reliance on an Order placed with us (or that you have suffered or may suffer any loss of profit, consequential or indirect loss) will not be taken into account by us in determining whether there has been a Manifest Error. We reserve the right, without prior notice, to:
(a) Amend the details of such a Transaction to reflect what we consider in our discretion, acting in good faith, to be the correct or fair terms of such Transaction absent such Manifest Error/s;
(b) If you do not promptly agree to any amendment made under (a) herein we may void from its inception any Transaction resulting from or deriving from a Manifest Error; and/or
(c) Refrain from taking any action at all to amend the details of such a Transaction or void such Transaction.
25.3 We will not be liable to you for any loss, cost, claim, demand or expense you suffer (including loss of profits or any indirect or consequential losses) resulting from a Manifest Error or our decision to enforce the details of a Transaction notwithstanding any Manifest Error, except to the extent caused by our own fraud, willful default or gross negligence. In the event that a Manifest Error is made by any market, Stock Exchange, price providing bank, information source, commentator or official on whom we reasonably rely, we will not be liable to you for any loss, cost, claim, demand, or expense, except to the extent caused by our own fraud, willful default or gross negligence.
26.1 Internet, connectivity delays, and price feed errors sometimes create a situation where the price displayed on the Formax Online Facility do not accurately reflect the market rates. The concept of arbitrage and "scalping", or taking advantage of these internet delays, cannot exist in an over the counter market where the client is buying or selling directly from the principal.
Formax do not permit the practice of arbitrage on the Formax Online Facility. Trading that relies on price latency arbitrage opportunities may be revoked, without prior notice. Formax reserves the right to make the necessary corrections or adjustments on the Account involved, without prior notice. Accounts that rely on arbitrage strategies may at Formax' sole discretion be subject to Formax' intervention and Formax' approval of any Orders. Any dispute arising from such quoting or execution errors will be resolved by Formax in its sole and absolute discretion.
26.2 Formax will have no obligation to contact you to advise upon appropriate action in light of changes in market conditions or otherwise.
27. Exclusions, Limitations and Indemnity
27.1 Nothing in these Terms of Business will exclude or restrict any duty or liability owed by us to you under any Applicable Regulations except as permitted by law.
27.2 General exclusion: Except as set out in 27.1 above neither we nor our directors, officers, employees, or agents will be liable for any losses, damages, costs or expenses (including direct, indirect, incidental, punitive, or consequential loss, loss of profits, lost data, loss of use of the Formax Online Facility, business interruption, costs of substitute, services or downtime costs), whether arising out of negligence, breach of contract, misrepresentation or otherwise, incurred or suffered by you under these Terms of Business (including any Transaction or where we have declined to enter into a proposed Transaction) unless such loss arises directly from our gross negligence, willful default or fraud. In no circumstance will our liability include losses suffered by you or any third party for any special damage, or loss of profits or loss of goodwill or reputation or loss of business opportunity arising under or in connection with these Terms of Business, whether arising out of negligence, breach of contract, misrepresentation or otherwise.27.3 Trading Losses: For the avoidance of doubt, in no circumstances will we be liable to you, or responsible, for any losses or other costs or expenses of any kind arising out of or in connection with the placement of Orders by you, or the execution of trading with us.
27.4 Tax implications: Without limitation, we do not accept liability for any adverse tax implications of any Transaction whatsoever.
27.5 Changes in the market: Without limitation, we do not accept any liability by reason of any delay or change in market conditions before any particular Transaction is effected.
27.6 Force majeure: Since we do not control signal power, its reception or routing via Internet, configuration of your equipment or reliability of its connections, we will not be liable for any claims, losses, damages, costs or expenses, including attorney's fees, caused directly or indirectly, by any breakdown or failure of any transmission or communication system or equipment or computer facility or trading software, whether belonging to us, our Affiliates, you, any market, or any settlement or clearing system when you trade online (via Internet) or for any cause preventing us from performing any or all our obligations, any act of God, war, terrorism, malicious damage, civil commotion, industrial acts, any Exceptional Market Event, or acts and regulations of any governmental or supra national bodies or authorities which in our opinion prevent an orderly market in relation to your Orders (a "Force Majeure Event"). Upon the occurrence of a Force Majeure Event, we will use commercially reasonable efforts to resume performance and we may give you written notice. Upon occurrence of a Force Majeure Event, all of our obligations under these Terms of Business will be immediately suspended for the duration of such Force Majeure Event. Additionally, we may take any one or more of the following steps:
(a) Alter normal trading times;
(b) Alter the Margin requirements;
(c) Amend or vary these Terms of Business and any Transaction contemplated by these Terms of Business, insofar as it is impractical or impossible for us to comply with our obligations;
(d) Close any or all open trading, cancel instructions and Orders as we deem to be appropriate in the circumstances;
(e) Take or omit to take all such other actions as we deem to be reasonably appropriate in the circumstances having regard to the positions of you, us, and other customers.
27.7 Indemnity: You agree to indemnify and hold Formax, its Affiliates and any of their directors, officers, employees and agents harmless from and against any and all liabilities, losses, damages, costs and expenses, including legal fees incurred in connection with the provision of the services under these Terms of Business to you provided that any such liabilities, losses, damages, costs and expenses have not arisen for our gross negligence, fraud or willful default.
27.8 Without prejudice to our rights in clause 15 of these Terms of Business, you will pay to us such sums as we may from time to time require in any of your Accounts with us and, on a full indemnity basis, any losses, liabilities, costs or expenses (including legal fees), taxes, imposts and levies which we may incur or be subjected to with respect to any of your Accounts or any Transaction or any matching Transaction on a market or with an intermediate broker or as a result of any misrepresentation by you or any violation by you of your obligations under these Terms of Business (including any Transaction) or by the enforcement of our rights. Notwithstanding anything to the contrary, you will be liable for any and all debit balances not directly resulting from trading activity.
27.9 You agree to indemnify and hold Formax, its Affiliates, and any of their directors, employees, agents, successors and assigns harmless from and against all liabilities, losses, damages, costs and expenses, including attorney's fees resulting from use of programmable trading systems, whether built by you yourself or by any third party and executed on or using any trading platform offered by Formax.
27.10 Claims from your customers: To the extent you have entered Orders for the account of your customers, you will on demand indemnify, protect and hold us harmless from and against all losses, liabilities, judgments, suits, actions, proceedings, claims, damages and costs resulting from or arising out of claims raised by your customers. This clause will not be affected by the termination of these Terms of Business.
27.11 Formax Online Facility: Access to the Formax Online Facility is provided "as is". Subject to any obligations we may have to you under any Applicable Regulations, including the Consumer Guarantees Act 1993,Formax makes no warranties, express or implied, representations, or guarantees as to the merchantability, fitness for any particular purpose or otherwise with respect to the Formax Online Facility, its content, any documentation or any hardware or software provided. Technical difficulties could be encountered in connection with the Formax Online Facility. These difficulties could involve, among others, failures, delays, malfunction, software erosion or hardware damage, which difficulties could be the result of hardware, software or communication link inadequacies or other causes. Such difficulties could lead to possible economic and/or data loss. In no event will Formax or its Affiliates or any of their employees be liable for any possible loss (including loss of profit or revenue whether direct or indirect), cost or damage including, without limitation, consequential, unforeseeable, special or indirect damages or expense which might occur as a result of or arising out of using, accessing, installing, maintaining, modifying, de-activating or attempting to access the Formax Online Facility or otherwise. If you have entered into these Terms of Business and exercise your rights under them for business purpose, you agree that the rights and remedies implied by the Consumer Guarantees Act 1993 are excluded to the fullest extent permitted by law.
27.12 Internet Failures: Since Formax does not control signal power, its reception or routing via Internet, configuration of your equipment or reliability of its connection, Formax cannot be responsible for communication failures, distortions or delays when using the Formax Online Facility.
28.1 Amendments: We reserve the right to amend these Terms of Business from time to time, with or without notice to you, by posting such changes on the Formax website and will be binding on you from the date they are posted. You are responsible for regularly reviewing these Terms of Business on our website for any modifications and agree to be bound by any such amendments. You may not amend these Terms of Business unless such amendment is in writing and signed by an Authorised Officer. Unless otherwise agreed, an amendment will not affect any outstanding Order or Transaction. If you do not wish to accept any amendment made by us to these Terms of Business you may by written notice to us close your open Margin Transaction trading and your Account in accordance with these Terms of Business.
28.2 Notices by Formax: Unless otherwise agreed or specified in these Terms of Business, all notices, instructions and other communications to be given by us to you under these Terms of Business may be verbal or in writing and will be given to your last known home address, place of work, telephone number (including a telephone answering machine), fax number, e-mail address or other contact details. All notices, instructions and other communications to be given to Formax by you under these Terms of Business should be sent to the Compliance Officer at the address set out in section 33.
28.3 Each notice, instruction or other communication to you (except confirmations of trade, statements of account, and Margin Call Warnings) will be conclusive unless written notice of objection is received by us within five (5) Business Days of the date on which such document was deemed to have been received. Any notice, instruction or other communication will be deemed to have been duly given when received or given as follows, whichever is the earlier:
(a) When left at your last known home or work address;
(b) If given by leaving a telephone answering machine message or voice mail message, one hour after the message being left on the relevant medium;
(c) If sent by first class post, in the ordinary course of the post and in any event on the next day (or third in the case of air mail) after posting (excluding Sundays and public holidays); and/or
(d) if sent by e-mail, one hour after sending, provided no "not sent" or "not received";
Message is received from the relevant e-mail provider/s.
28.4 You will notify us promptly in writing of any change of your address or other contact details in accordance with this clause.
These Terms of Business will be for the benefit of and binding upon us both and our respective successors and assigns. No assignment of these Terms of Business or any rights hereunder will relieve you of any of your obligations or liabilities hereunder. You will not assign, charge or otherwise transfer or purport to assign, charge or otherwise transfer rights or obligations under these Terms of Business or any interest in these Terms of Business, without Formax's prior written consent, and any purported assignment, charge or transfer in violation of this clause will be void. Formax may assign these Terms of Business by providing not less than ten (10) Business Days written notice to you, except where in our opinion notice is impracticable in the circumstances in which case no notice to you is required. You hereby instruct us as the case may be that upon any such assignment, any monies held as Client Money be transferred to the Assignee to be held as Client Money on your behalf.
In order to comply with our obligations under any Applicable Regulations, we may be required to make certain disclosures relating to your trading, which may or may not include disclosing your identity. We may also be required under any Applicable Regulations to provide to a regulatory body on request information relating to specific Transactions which we have made on your behalf.
You agree that such compliance does not cause us to breach any obligation of confidentiality which we owe to you pursuant to these Terms of Business.
28.7 Time of essence:
Time will be of the essence in respect of all obligations of yours under these Terms of Business (including any Transaction).
28.8 Rights and remedies:
The rights and remedies provided under these Terms of Business are cumulative and not exclusive of those provided by law. We will be under no obligation to exercise any right or remedy either at all or in a manner or at a time beneficial to you. No failure by us to exercise or delay by us in exercising any of our rights under these Terms of Business (including any Transaction) or otherwise will operate as a waiver of those or any other rights or remedies. No single or partial exercise of a right or remedy will prevent further exercise of that right or remedy or the exercise of another right or remedy.
28.9 Set-off: Without prejudice to any other rights to which we may be entitled we may at any time and without notice to you set off any amount (whether actual or contingent, present or future) at any time owing between you and us.
28.10 Partial invalidity: If, at any time, any provision of these Terms of Business is or becomes illegal, invalid or unenforceable in any respect under the law of any jurisdiction, neither the legality, validity or enforceability of the remaining provisions of these Terms of Business nor the legality, validity or enforceability of such provision under the law of any other jurisdiction will in any way be affected or impaired.
28.11 Entire Agreement: These Terms of Business, and any references to other agreements herein, together with any schedules attached hereto, constitute the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior or contemporaneous oral or written communications, proposals, agreement and representations with respect to the subject matter.
28.12 Waiver: We are entitled to waive or relax any of these Terms of Business from time to time without notice to you. No failure or delay in exercising or relaxation by us of these Terms of Business will operate as a general waiver of the relevant term, condition, right or power and no partial or single exercise of any term, condition, right or power will preclude any other or further exercise of some or any of our other rights and remedies against you. In particular, and without limitation, where these Terms of Business specify certain limits or parameters to your trading activities or Margin requirements, we will be entitled from time to time and with or without notice to you to allow you to breach such limits or parameters.
28.13 Recording of calls: We may record telephone conversations without use of a warning tone to ensure that the material terms of the Transaction, and any other material information relating to the Transaction is promptly and accurately recorded. Such records will be our sole property and accepted by you as evidence of the Orders or instructions given.
28.14 Electronic communications: Subject to any Applicable Regulations, any communications between us using electronic signatures will be binding as if it were in writing. By execution of these Terms of Business you give your consent to the receipt of communications by electronic means which but for your consent must be made using a durable medium under Applicable Regulations. Orders or instructions given to you by electronic means will constitute evidence of the Orders or instructions given. You hereby consent that Account information and trade confirmations will be made available to you on the Formax Online Facility in lieu of delivery via mail or e-mail. You will be able to access this information using your Access Code. Updated information will be available no more than twenty-four hours after any activity takes place on your account, absent any Force Majeure Event or service interruption. If you no longer wish to communicate in this way, you must revoke this consent in writing. If you do not wish to communicate via electronic means at all, you must inform us of your wishes prior to you signing the signature page of these Terms of Business.
28.15 Our records: Our records, unless shown to be wrong, will be evidence of your dealings with us in connection with our services. You will not object to the admission of our records as evidence in any legal proceedings because such records are not originals, are not in writing or are documents produced by a computer. You will not rely on us to comply with your record keeping obligations, although records may be made available to you on request at our absolute discretion.
28.16 Your records: You agree to keep adequate records in accordance with any Applicable Regulations to demonstrate the nature of Orders submitted and the time at which such Orders are submitted.
28.17 Third party rights: The parties to these Terms of Business do not intend that any provision of these Terms of Business should be enforceable by virtue of the Contract (Privity) Act 1982 by any person who is not a party to these Terms of Business.
28.18 Co-operation for proceedings: If any action or proceeding is brought by or against us in relation to these Terms of Business or arising out of any act or omission by us required or permitted under these Terms of Business, you agree to co-operate with us to the fullest extent possible in the defence or prosecution of such action or proceeding.
28.19 Information and Intellectual Property: You acknowledge and agree that Formax is the sole owner (except to the extent owned by third party licensors and except to the limited extent licensed by Formax to any other financial institutions and their clients) of all right, title and interest (collectively the "IP Rights") in and to the Formax Online Facility, the data and other information generated by the Formax Online Facility ("Data") produced by and distributed by or through the Formax Online Facility and each component thereof and all intellectual property and propriety rights with respect thereto, including, without limitation, patent, copyright, trade secret, trademark and other proprietary rights in and to the Formax Online Facility and each component thereof, and to all modifications, including custom modifications, to the Formax Online Facility and each component thereof, whether made by or with the assistance of you and any other person and any know how, techniques, methodologies, equipment or processes used by Formax, the look and feel of the Formax Online Facility and each component thereof and all of Formax's software (front and back end) all registered trademark applications, trademarks and service marks, trade names, URL registrations and all pricing information and other Data.
28.20. You will not obtain any intellectual property rights in or to the IP Rights.
29. Data Protection and Disclosure of Information
29.1 By opening an Account with us and by placing Orders and entering into trading, you acknowledge that you will be providing personal information (possibly including sensitive data) within the meaning of the Privacy Act 1993 to us, and you consent to the processing of that information by us for the purposes of performing our obligations under these Terms of Business and administering the relationship between you and us, including the disclosure of the information to our Affiliates and other third parties as required for those purposes.
29.2 Data may be transferred to, and stored and processed in countries which do not have legislation protecting your privacy and the integrity of your personal information for any purpose related to the operation of your Account. Such purposes include but are not limited to processing of instructions and generation of confirmations, the operation of control systems; the operation of management information systems and allowing staff of Affiliates who share responsibility for managing your relationship from other offices to view information about you.
29.3 Before doing so, we will put contractual arrangements in place to ensure the adequate protection of your personal information and we will endeavour to ensure that any such contractual arrangements comply with standards required by the Privacy Act 1993.
29.4 We have security procedures covering the storage and disclosure of your personal information to prevent unauthorised access and to comply with our legal obligations.
29.5 You are entitled to ask us for details of the personal information that we hold about you, the purposes for which they are being or are to be processed, and the recipients or classes of recipients to whom they are or may be disclosed. If you would like to request this information, please contact us. We may charge a reasonable fee for providing this information to you (details of which are available upon request). If you make a written request to us, we will also correct, delete and/or block personal information from further processing if that information proves to be inaccurate.
29.6 We will be entitled to disclose information concerning you or your Account (including without limitation information concerning late payment) to any regulator of your business or, to your employer if such disclosure is authorised under the Privacy Act 1993 (or any successor legislation or equivalent legislation or regulations in a foreign jurisdiction) or to any other person we accept as seeking a credit report in good faith in accordance with the Credit Reporting Privacy Code 2004.
29.7 You irrevocably authorise us to obtain information relating to you from any third party (including a credit reference agency) and disclose to any related person as defined in section 2(3) of the Companies Act 1993, or other person, (including credit reference agency) any information held by us or that related or other person, as may be required or desirable to provide services or products to you from time to time, including under these Terms of Business.
30. Governing Law
30.1 Governing law: A Transaction which is subject to the rules of a market will be governed by the law applicable to it under those rules. Subject thereto, these Terms of Business will be governed by and construed in accordance with New Zealand relevant law.
30.2 Jurisdiction: Without prejudice to any rights you may have to refer a complaint to FSCL, as further set out in section of these Terms of Business, each of the parties irrevocably:
(a) Agrees that the courts of New Zealand will have non-exclusive jurisdiction to settle any suit, action or other proceedings relating to these Terms of Business ("Actions") and irrevocably submits to the jurisdiction of such courts; and
(b) Waives any objection which it may have at any time to the laying of venue of any Actions brought in a New Zealand court and agrees not to claim that such Actions have been brought in an inconvenient forum or that such court does not have jurisdiction over it.
31. Formax MT4
The following additional terms apply to clients utilizing Formax MT4 ("The Program"). If you utilize The Program, you agree to these additional terms and authorise Formax to act accordingly by signing these Terms of Business.
31.1 You wish to utilize The Program to execute trades and to direct trade orders and trade details to Formax. Clients utilizing The Program will not be entering trades orders and trade details directly with Formax, but rather will be entering trade orders and trade details through The Program, a third party. You hereby authorize and direct Formax to enter trades for your Account in accordance with trading signals generated and sent to Formax by The Program. In consideration of opening your Account, you acknowledge and agree to the additional terms and conditions, as follows:
(a) You fully understand that the trade orders and trade details are generated by The Program and not by Formax and that Formax's responsibility is to use commercially reasonable efforts to enter Orders pursuant to the trade orders and trade details generated by The Program and as received by Formax. You confirm that Formax has not solicited, or in any other way recommended, your participation in The Program. You have made inquires and conducted research into The Program sufficient to make an informed investment decision. Formax cannot imply or guarantee that you will make a profit from The Program and you agree that Formax will not be held responsible for The Program's performance or trading losses incurred in your Account as a result of trading pursuant to The Program.
(b) Formax will enter trade orders for your Account in accordance with the trade orders and trade details generated by The Program. You understand that your trading access through The Program will be provided by The Program provider and not by Formax.
(c) If more than one Formax client is using the same system or service as The Program, you acknowledge that Formax may enter block Orders to enhance order execution, in which case a fair and systematic fill allocation method will be employed. You understand and acknowledge that Formax will only be responsible for using its commercially reasonable efforts to execute, in a timely fashion, the trade orders and trade details generated by The Program. Formax will not be responsible for any error or malfunction of The Program, mechanical or communication line failure, system errors, data failure or any other causes beyond its control. You acknowledge that Formax can accept and execute Orders only if actually received or generated and then on a "not held" basis (i.e. Formax will not be held responsible for the execution of the Order at the price indicated or otherwise).
(d) You have had the opportunity to ask questions on how your Account will be handled and acknowledges that you have not purchased The Program from Formax. You understand that there is no trading system or recommendation service, including The Program, which is free from the risk of loss. Formax does not imply or guarantee that you will make a profit and you agree that neither Formax nor any of its officers, directors, employees, consultants, agents or affiliates will be held responsible for the performance of The Program or trading losses in your Account.
(e) Formax may act upon the permission given by you signing these Terms of Business until you revoke such permission by written notice addressed and actually delivered to Formax, in accordance with the instructions and details on Formax's website. Formax may also terminate the authorization over The Program at any time for any reason in its sole discretion and will provide you with written notice. You will be responsible for any open lots in your Account at the time The Program is terminated. You will permit Formax to execute offsetting Orders for any open lots in your Account at the time your permission is terminated.
(f) You agree that, in the absence of our fraud, willful default or gross negligence, neither Formax nor any of its officers, directors, employees, consultants, agents or affiliates will be held liable for any act or omission in the course of or in connection with your participation in The Program. You will indemnify Formax, its principals, officers, directors, employees, agents, successor and/or assigns from all losses and/or liability (including reasonable legal and/or accountant's fees) incurred or resulting from your permission to utilize The Program, provided that there has been no judicial determination that such liability was the result of fraud, willful default or gross negligence Formax.
32. Formax Mobile Trading System
(hereinafter referred to as 「Mobile 」) Terms of Service and Risk Disclosure
32.1 Terms of Service:
IT ISSTRONGLY RECOMMENDED THAT YOU FAMILIARIZE YOURSELF WITH THE FUNCTIONALITIES OF MOBILE BY USING THE DEMO VERSION PRIOR TO MANAGING YOUR LIVE ACCOUNT VIA A PORTABLE DEVICE. Formax RECOMMENDS MOBILE USERS NOT TO USE MOBILE AS THEIR PRIMARY TRADING PLATFORM. INSTEAD MOBILE USERS SHOULD USE MOBILE AS A SUPPLEMENTAL RESOURCE TO Formax'S TRADING STATION.
(a) Mobile is comprised of mobile trading software provided exclusively through public telecommunication networks, circuits and other public connections to Formax Online Facility. As Mobile utilizes public telecommunication network circuits for the transmission of messages, Formax will not be liable for any and all circumstances in which you may experience a delay in price quotation or an inability to trade caused by network circuit transmission problems that may arise between you and any internet service provider, phone service provider, or any other service provider or related to any other problems outside the direct control of Formax.
(b) Formax will endeavor to use commercially reasonable efforts to ensure the security of information and trading conducted via Mobile. However, you are obligated and solely responsible to keep your password(s) and other confidential information secret and ensure that third parties do not obtain access to your account or your portable device. You will be solely liable for any and all trades executed by means of your password(s) even if such use may be wrongful. Formax may rely on all orders and instructions submitted using your password(s) without further inquiry or verification.
(c) You agree that neither Formax nor its third party service providers will be liable for the reliability or accuracy of the information made available via Mobile. Such information is reasonably believed to be accurate and timely; however, there are no explicit or implicit warranties of accuracy or timeliness in connection therewith or continued availability of this information, and such information should not be relied upon as such.
(d) You agree that Formax' Online Facility is the primary means relied upon for all Order and trade related services, including but not limited to confirmations, account balances, margin
balances, price quotes, account status, and account details. In the event of any inconsistencies in the above between Formax Online Facility and Mobile, Formax Online Facility will prevail.
(e) You agree that you will not rely on the Mobile as your primary means of placing trades. You agree that the Mobile is being provided solely as a convenience and not as an alternative to Formax Online Facility or telephoning the Formax trading desk.
32.2 Risk Disclosure:
(a) You understand that by choosing to conduct trading activity via Mobile, you assume and accept certain risks for which you agree that neither Formax nor its third party service provider will be liable, including but not limited to the risk of: power outages; broken connections; network circuit obstruction or congestion; transmission failures; transmission delays; the risk of delayed communications during periods of increased market volatility; and/or other occurrences outside Formax' direct control (collectively, "Technical Problems"). Order execution via Mobile is not guaranteed. You hereby agree to indemnify and hold Formax harmless with respect to any and all losses you may sustain in connection with any and all Technical Problems. Customer service inquiries relating to Technical Problems should be directed to Formax. However, in no event will Formax be liable for your inability to engage in trading activity via Mobile and Formax will not be responsible for any losses or missed opportunities incurred by you due to the delayed or non-delivery of any order or instruction via Mobile.
(b) You agree that Formax will not be responsible for any fees associated with your use of Mobile should you incur any fees from your internet service provider, phone service provider, or any other service provider used to access Mobile.
(c) Online trading and trading via portable device, no matter how convenient or efficient, does not reduce the risks associated with foreign exchange trading. Formax will not be liable to you or any third party for the accuracy or timeliness of any and all information provided via Mobile or for any and all actions on such information.
(d) IF YOU HAVE ANY DOUBTS AS TO WHETHER AN ORDERPLACED VIA MOBILE HAS BEEN EXECUTED, YOU SHOULD NOT PLACE ADDITIONAL ORDERS VIA MOBILE ; RATHER, YOU SHOULD CONTACT Formax FOR INFORMATION REGARDING
ORDER STATUS OR LOG ON TO THE Formax ONLINE FACILITY. Formax' PHYSICAL TELEPHONE TRADING DESK IS MAINTAINED DURING TRADING HOURS AS AN ALTERNATIVE METHOD OF COMMUNICATION DURING MOBILE SERVICE INTERRUPTIONS OR WHEN EXPERIENCINGTECHNICAL PROBLEMS.
If you have a complaint you can contact our Compliance Officer at the following address and we will do our best to resolve it for you.
Formax International Market Limited
Level 7, 203 Queen Street
P O Box 
Call: 09 379 9624during normal business hours
For Retail Clients, if we are unable to resolve your complaint, you can contact Financial Services Complaints Limited (FSCL). This scheme is available at no cost to you and will help us resolve any disagreements.
Financial Services Complaints Limited
101 Lambton Quay
P O Box 5967
Call: 0800 347257 during normal business hours
COMPLEX PRODUCTS - GENERAL RISK DISCLOSURE NOTICE
This notice does not disclose all of the risks and other significant aspects of derivatives products such as Margined Transaction trading. You should not deal in derivatives unless you understand the nature of the contract you are entering into and the extent of your exposure to risk. You should also be satisfied that the contract is suitable for you in the light of your circumstances and financial position.
Certain strategies, such as "spread" position or a "straddle", may be as risky as a simple "long" or "short" position. Whilst derivatives instruments can be utilised for the management of risk, some investments are unsuitable for many investors. Different instruments involve different levels of exposure to risk, and in deciding whether to trade in such instruments you should be aware of the following points:
(a) Spot can be likened to futures which can be entered into in relation to the FTSE-100 index or any other index or share, as well as Currency. Spread Bets are a form of Spot. However unlike other futures and options, these contracts can only be settled in cash. Investing in a Spot or a Spread Bet carries risks similar to investing in a future or an option and you should be aware of these. Trading in Spot or Spread Bets may also have a contingent liability and you should be aware of the implications of this as set out in paragraph (c) below.
(b) Foreign markets. Foreign markets involve different risks from New Zealand markets. In some cases risks will be greater. The potential for profit or loss from trading on foreign markets or in foreign currency will be affected by fluctuations in foreign exchange rates. Such enhanced risks include the risks of political or economic policy charges in a foreign media, which may substantially and permanently alter the conditions terms, marketability or price of a foreign currency.
(c) Risk reducing orders or strategies. The placing of certain orders (e.g. "stop loss" or "stop limits" orders) that are intended to limit losses to certain amounts may not always be affected because market conditions or technological limitations may make it impossible to execute such orders. Strategies using combinations of positions such as "spread" and "straddle" positions, may be just as risky or even riskier than simple "long" or "short" positions.
(d) Prices. The prices posted on the Formax Online System may not necessarily reflect the broader market. We will select closing prices to be used in determining Margin requirements and in periodically marking to market the positions in customer accounts. Although we expect that these prices will be reasonably related to those available on what is known as the interbank market, prices we use may vary from those available to banks and other participants in the interbank market. Consequently, we may exercise considerable discretion in setting margin requirements and collecting margin funds.
(e) Weekend risk. Various situations, developments or events may arise over a weekend in New Zealand (Friday 16.30NZST – Sunday 18.00NZST) when the currency markets generally close for trading, that may cause the currency markets to open at a significantly different price from where they closed on Friday afternoon. Our customers will not be able to use the Formax Online System to place or change orders over the weekend and at other times when the markets are generally closed. There is a substantial risk that stop-loss orders left to protect open positions held over the weekend will be executed at levels significantly worse than their specified price.
(f) Should a complaint be received where a stop loss has been triggered due to a price spike, we will investigate the prices quoted at that time with Reuters and/or Bloomberg. Conversely if we are advised by our counterparty that an order is to be cancelled due to a price spike i.e. never traded at that price, we will also cancel the client’s trade for the same reasons.
(g) Electronic trading. Trading in over the counter contracts through the Formax Online Facility may differ from trading on other electronic trading systems as well as from trading in a conventional or open market. Customers that trade on an electronic trading system are exposed to risks associated with the system including the failure of hardware and software and system down time, with respect to the Formax Online Facility, the individual customer's systems, and the communications infrastructure (for example the internet) connecting the platform with customers.
(h) Contingent liability trading, which is margined, requires you to make a series of payments against the purchase price, instead of paying the whole purchase price immediately. You may sustain a total loss of the Margin you deposit with your dealer 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 liable for any resulting deficit. Even if the 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 paid when you entered into the contract. Contingent liability trading which is not traded on or under the rules of a recognized or designated investment exchange may expose you to substantially greater risks.
(i) Collateral. If you deposit collateral as security, you should ascertain how your collateral will be dealt with. Deposited collateral may lose its identity as your property once dealings 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.
(j) Commissions. 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 dealing spread), you should obtain a clear written explanation, including appropriate examples, to establish what such charges are likely to mean in specific money terms.
(k) Insolvency. Any insolvency or default 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. Additionally you transfer full ownership and title to a portion or all of the money you deposit with Formax representing an amount necessary to secure your open positions or cover your actual or future contingent or prospective obligations (which will be calculated daily in Formax's sole discretion based on your daily open positions and trading and which may be greater than the Margin required to maintain your open positions, as market conditions may dictate) such that you will not have a proprietary claim over that portion or any of your money and that portion or any of your money will not be segregated and you will rank only as a general creditor of Formax with respect to any claim for the payment of such portion of the above described money you deposit which may therefore be irrecoverable in the event of any insolvency or default. You should only engage in precious metals, Spot, or Rolling Spot Forex trading if you are prepared to accept a high degree of risk and in particular the risks outlined in this Risk Disclosure Notice. You must be prepared to sustain the total loss of all amounts you may have deposited with Formax as well as any losses, charges (such as interest) and any other amounts (such as costs) we incur in recovering payment from you.
TERMS APPLICABLE TO CLIENTS WHO ENTER INTO Spot CONTRACTS
1.1 This Schedule supplements and amends the Terms of Business as expressly provided below. Defined terms in the Terms of Business will be assigned the same meaning in this Schedule. In the event of any conflict or inconsistency between the Terms of Business and this Schedule the provisions in this Schedule will prevail. You acknowledge and agree that, by signing the signature page of these Terms of Business, you agree to be bound by the terms of this Schedule.
1.2 Clauses 2 to 6 of this Schedule will govern the relationship between you and Formax when you enter into a Spot Contract (which, for the avoidance of doubt, includes a Rolling Spot ForexContract but does not include a Spread Bet Contract).
2.1 We deal with you only after you have requested a quote for a Spot Contract, we have quoted a price and you have given a specific instruction or Order to open a Spot Contract at the price quoted by us.
2.2 You acknowledge and agree that unless otherwise agreed in writing you will not be entitled to delivery of, or be required to deliver, the Investment to which a Spot relates nor will you acquire any interest in the relevant Investment or be entitled to receive dividends or any equivalent thereof, to exercise voting rights, to receive any rights pursuant to any rights or bonus issue or to participate in any placing or open offer by virtue of your Spot position in respect of a Contract Investment which is a security. The payment of any dividend or occurrence of any rights or bonus issue, placing, open offer or take-over in respect of a security will be dealt with in accordance with these Terms of Business.
3. Obtaining a Quote and Order Placement
3.1 At any time which you wish to enter into a Spot Contract, or to close all or part of a Spot Contract, you may request a quote to open a Spot Contract with Formax during the normal hours of trading for the relevant Contract Investment. Formax may provide quotes in its sole discretion outside normal hours of trading if requested by you.
3.2 Spot Contracts will be initiated by you placing an Order offering to enter into a Spot Contract in respect of a Contract Investment at the price quoted to you.
3.3 Each Order must be an instruction to 'buy' or 'sell'. A 'buy' Spot Contract may also be referred to as a 'long' or 'long position' and a 'sell' Spot Contract may also be referred to as a 'short' or 'short position'.
4. Acceptance of Orders and Opening of Spot Contracts
4.1 You may cancel your Order at any time by notice to us unless and until the Order has been executed in whole or in part only if the order is an Entry Order ("Entry Order" means an order to enter the market at a specific price).
If an Order has been executed in whole or in part it will not be possible for you to cancel the Order to the extent that the Order has been executed. If an Order is a Market Order ("Market Order" means an order to enter the market at the best current price), it will not be possible for you to cancel the Order at any time.
4.2 For Accounts using the "Non-Hedging" setting: If you give an Order to open a long position in relation to a Contract Investment on an Account where at that time you already have a short position in relation to the same Contract Investment on that Account, or give an Order to open a short position in relation to a Contract Investment where you already have a long position in relation to that Contract Investment, then we will treat your instruction to open the new position as an instruction to close the existing position to the extent of the size of the new position. If the new position is greater in size than the existing position, then the existing position will be closed in full and a Spot Contract opened in relation to the excess size of the new position.
4.3 For Accounts using the "Hedging" setting: You may open a position by providing us with an Order. Your request to open a new position will not close current open positions
5. Closing a Spot Contract
5.1 On any Business Day on which either of us wishes to close any Spot Contract (whether in whole or in part) either party may give a Closing Notice to the other specifying the Spot Contract it wishes to close, the related Contract Investment, the Contract Quantity and the Closing Date.
5.2 Any Closing Notice served by you will take effect immediately subject to prevailing Market conditions.
5.3 Any Closing Notice served by us pursuant to clause 5.1 of this Schedule will take effect two Business Days following the giving of this Notice.
5.4 Following receipt of a Closing Notice, we will inform you of the Closing Price of the Spot Contract and the Spot Contract will be closed at that price on the Closing Date. Any amounts payable by either party to the Spot Contract are immediately due and payable on closing and will be paid on the Contract Settlement Date.
5.5 In addition to our rights at clause 23 of these Terms of Business and our rights pursuant to clause 5.1 of this Schedule to serve a Closing Notice, Formax may close any Spot Contract in its sole discretion at any time without notice in the event that:
5.5.1 It is a 'sell' Spot Contract, and due to illiquidity in the relevant Contract Investment we are unable to borrow a sufficient number of such Contract Investments to settle any underlying hedge position in respect of the Spot Contract;
5.5.2 We are required, at any time, by a lender to return any Contract Investment borrowed by us which relates to a Spot Contract and we are then unable to maintain a hedge position in respect of that Spot Contract;
5.5.3 At any time we are unable to establish or maintain a hedge position in respect of a Spot Contract;
5.5.4 You fail to honour a Margin Call Warning in accordance with clause 15 of these Terms of Business;
5.5.5 A Force Majeure Event occurs;
5.5.6 These Terms of Business are terminated.
6.1 We will determine any Closing Price required as soon as reasonably practicable after the Closing Date to reflect the economic effect (and anticipated economic effect) on us of the event giving rise to the Closing Date including (without limitation):
6.1.1 The effect (and anticipated effect) of such event on the value, transferability, liquidity and/or volatility of the Spot Contract Financial Investment;
6.1.2 The effect (and anticipated effect) of such event on any hedge, contract or other trading position relating to the Spot Contract which we have or have had in place, or may reasonably have put in place;
6.1.3 The effect (and anticipated effect) of such event on the value, transferability, liquidity and/or volatility of such hedge, contract or other trading position;
6.1.4 Any costs we incur (and anticipate incurring) in terminating, liquidating or re-establishing any hedge, contract or other such trading position we have or have had in place.
TERMS APPLICABLE TO CLIENTS WHO ENTER INTO Spot CONTRACTS ON
7.1 Clauses 8 to 9 of this Schedule will govern the relationship between you and Formax when you enter into a Spot Contract the subject of which is formed by Securities.
8. Adjustments, Take-Over Offers & Suspension
8.1 If any Securities become subject to possible adjustments as the result of any of the events set out in clause 8.2 below, we will determine the appropriate adjustment, if any, to be made to the Current Contract Value or Contract Quantity of any related Spot Contract to account for the dilutive or concentrative effect as necessary to preserve the economic equivalent of the Spot Contract prior to the relevant event or to reflect the effect of the event on the relevant Securities such adjustments will be effective as of the date determined by us.
8.2 The events to which clause 8.1 refers may include without limitation the declaration by the issuer of the Securities of the terms of any of the following:
8.2.1 A subdivision, consolidation or reclassification of shares, or a free distribution of shares to existing holders by way of bonus, capitalisation or similar issue;
8.2.2 distribution to existing holders of the underlying Securities of additional shares, other share capital or Securities granting the right to payment of dividends and/or proceeds of liquidation of the issuer, or Securities, rights or warrants granting the right to a distribution of shares or to purchase, subscribe, or receive shares, in any case for payment (in cash or otherwise) at less than the prevailing Market price per share;
8.2.3 Any event in respect of the Securities analogous to any of the foregoing events or otherwise having a dilutive or concentrative effect on the Market value of the security.
8.3 If at any time a "Merger Event" (as defined below) occurs or a Take-over Offer is made in respect of any relevant Spot Contract Securities, then on or after the date of the Merger Event or at any time prior to the Closing Date of such Take-over Offer, a "Calculation Adjustment" (as defined herein) may be made. Calculation Adjustment means that we will either:
8.3.1 make such adjustment to the exercise, settlement, payment or any other terms of the Contract as we may determine is appropriate to account for the economic effect, if any, on the Spot Contract Securities of such Merger Event or Take-over Offer (provided that no adjustments will be made to account solely for changes in volatility) expected dividends, stock loan rate or liquidity relevant to the Spot Contract Securities or to the Contract, which may, but need not, be determined by reference to adjustment(s) made in respect of such Merger Event or Take-over Offer by an Exchange to futures or options on the relevant Spot Contract Securities traded on such Exchange;
8.3.2 Determine the effective date of that adjustment (if any).
8.4 If we determine that no adjustment could be made under sub-paragraph 8.3 above which would produce a commercially reasonable result, we will issue a Closing Notice to you. The date of such notice will be the Closing Date. The Closing Price will be such price as is notified by us to you. For the purposes of this clause Merger Event means in respect of any Spot Contract Securities:
8.4.1 any reclassification or change of the Spot Contract Securities that results in a transfer of or an irrevocable commitment to transfer all outstanding Securities of the same class as the Spot Contract Securities to another entity or person, whether by consolidation, amalgamation, merger or binding share exchange of the relevant Spot Contract Securities with or into another entity or person (other than a consolidation, amalgamation, merger or binding share exchange in which such issuer is the continuing entity and which does not result in a reclassification or change of all such Spot Contract Securities outstanding);
8.4.2 a Take-over Offer of the outstanding Spot Contract Securities of the issuer that results in a transfer of or an irrevocable commitment to transfer all of them (other than Spread Spot Contract already owned or controlled by such other entity or person);
8.4.3 consolidation, amalgamation, merger or binding share exchange of the issuer of the relevant Spot Contract Securities or its subsidiaries with or into another entity in which the issuer is the continuing entity and which does not result in a reclassification or change of all such Spot Contract Securities but results in the outstanding Spot Contract Securities (other than Spot Contract Securities owned or controlled by such other entity) immediately prior to such event collectively representing less than 50% of the outstanding Spot Contract Securities immediately following such event (a "Reverse Merger").
9. Nationalisation and Insolvency
9.1 If all the shares, or all or substantially all the assets, of an issuer the Securities of which represent all or part of the Spot Contract Securities of a Spot Contract are nationalised, expropriated or are otherwise required to be transferred to any governmental agency, Commission, entity or instrumentality thereof, the day on which such event occurs, or is declared will be the Closing Date. The Closing Price will be such price as is notified by us to you.
TERMS APPLICABLE TO CLIENTS WHO ENTER INTO Spot CONTRACTS ON FINANCIAL INSTRUMENTS
10.1 Clause 11 of this Schedule will govern the relationship between you and Formax when you enter into a Spot Contract which has a Financial Instrument as the basis of the Contract.
11. Exchange Suspensions and Delisting
11.1 If at any time trading on an Exchange market is suspended in any Spot Contract Financial Instruments which forms the subject of a Spot Contract we will calculate the value of the Spot Contract with reference to the last traded price before the time of suspension, or the Closing Price if no trading in that financial instrument is undertaken during the Business Day on which a suspension occurs. In the event that the aforesaid suspension continues for five (5) Business Days, we and you may in good faith agree a Closing Date and a value of the Spot Contract. In the absence of such agreement, the Spot Contract will remain open in accordance with the provisions of this clause until such time as the aforesaid suspension is lifted or the Spot Contract is otherwise closed. During the term of a Spot Contract, in the event that the Contract Financial Instruments are suspended, we have the right to terminate the Spot Contract at our discretion and to amend or vary Margin requirements and Margin rates.
11.2 If a regulated market on which a Spot Contract Financial Instrument is principally traded announces that pursuant to the rules of such Market the relevant shares have ceased, or will cease to be listed, traded or publicly quoted on the market for any reason (other than a Merger Event or Take-over Offer) and are not immediately re-listed, re-traded or re-quoted on the market or quotation system located in the same country as the market (or where the market is within the European Union, in any member state of the European Union), or already so issued, quoted or traded the day on which such an event occurs, or (if earlier) is announced, will be the Closing Date. The Closing Price will be such price as notified by us to you.
TERMS APPLICABLE TO CLIENTS WHO ENTER INTO PRECIOUS METALS OR ROLLING SPOT FOREX CONTRACTS
12.1 Clauses 13 to 14 of this Schedule will govern the relationship between you and Formax when you enter into a precious metals or Rolling Spot Forex Contract.
13. Closing a precious metals or Rolling Spot Forex Contract
13.1 For accounts using the "Non-Hedging" setting: To close a precious metals or Rolling Spot Forex Contract, you must enter into a second precious metals or Rolling Spot Forex Contract in relation to the same metal or two currencies as the first precious metals or Rolling Spot Forex Contract, but if the first precious metals or Rolling Spot Forex Contract was a buy, the second precious metals or Rolling Spot
Forex Contract must be a sell, and vice versa. The first precious metals or Rolling Spot Forex will be closed to the extent of the contract size of the second precious metals or Rolling Spot Forex Contract. You should advise us of the precious metals or Rolling Spot Forex Contract you wish to close out giving the metal or two currencies, identifying the Base Currency and the Spot Contract Size.
13.2 For accounts using the "Hedging" setting: To close a position you must provide us with an Order identifying the position, precious metal or currency, and contract size of the position you wish to close.
13.3 Realised profit or loss in respect of a precious metals or Rolling Spot Forex Contract will be calculated by reference to the difference between (i) the product of the Spot Contract Size and Spot Contract Rate of the opening Transaction and (ii) the product of the Spot Contract Size and Spot Contract Rate of the closing precious metals or Rolling Spot Forex Contract and will be denominated in the second named currency for Rolling Spot Forex or USD for precious metals.
13.4 In addition to our rights at clause 23 of these Terms of Business, Formax may close any Rolling Spot Forex Contract in its sole discretion at any time without notice in the event that:
(a) You fail to honour a Margin Call Warning in accordance with clause 15 of these Terms of Business;
(b) A Force Majeure Event occurs;
(c) These Terms of Business are terminated.
14. Settlement Date, Rollover and Offset Instructions
14.1 Formax will automatically rollover all open positions on your Account to the following business day unless you notify us to close your position(s) prior to 17.00 NZST. Formax will charge you a fee in respect of each such position that is rolled over.
14.2 Offset instructions on open positions arriving at settlement date must be given to us at least one (1) Business day prior to settlement date.
14.3 In the absence of timely instructions from you, Formax is authorised, at our absolute discretion, to rollover or offset all or any portion of the positions in your Accounts or to make or receive delivery on your behalf upon such terms and by such methods deemed reasonable by Formax.
14.4 For the avoidance of doubt, Formax will not arrange delivery of precious metals or currencies unless Formax deem necessary or if we otherwise agree in writing with you.