TERMS AND CONDITIONS
Part A: General Terms and Conditions
This Client Services Agreement (Agreement) is between the Client, as identified in the Client Information Statement, and MS INVESTMENTS LIMITED (MS) whose principal place of business is Unit 3 125 Grafton Road, Grafton Auckland, New Zealand.
1.1 In this section of the Agreement, unless a contrary intention appears:
"Agreement" means all of the terms , conditions and acknowledgments herein and the terms, conditions and acknowledgments in any supplementary agreement, the Client Information Statement, Product Disclosure Statement, the Investment Broker's Disclosure Statement and, where provided, the Investment Adviser's Disclosure Statement, and, in respect of clauses 3, 8 and 10 (inclusive) of Part B of this section, any reference to "this Agreement" includes any Contract or other transaction governed by this Agreement or any such Contract or other transaction.
"Authorized Person" means any person authorized by the Client to deal on behalf of the Client and bind the Client under this Agreement or any other agreement with MS or any of its Associated Entities and notified to MS from time to time in the Client Information Statement or otherwise in writing.
"Associated Entity" means, in respect of MS, a related company as described in Section 2 of the Companies Act 1993 (NZ).
"Base Currency" means the currency in which the relevant Client Account is denominated.
"Business Day" means a day, on which the Exchange on which Exchange Traded Contracts and Securities are dealt or traded is open for trading, clearing, settlement and delivery (or, for Securities which are not exchange traded and for notices, pursuant to clause 28 of these General Terms and Conditions, any day on which banks are open for over the counter business in Auckland, New Zealand). For Off Exchange Contracts, it means a day on which the relevant underlying exchange rate, security, commodity or index specified in the Off-Exchange Contract specifications is available for dealing.
"Clearing House" means a party appointed by a Futures Exchange or Securities Exchange to act as the central counter-party and provide clearing and settlement services for that exchange.
"Clearing Participant" means a participant of a Clearing House that facilitates the clearing, settlement and delivery of Securities and Exchange Traded Contracts, including futures, options and other derivatives.
"Client" means the person, or as the case may be, each person, whose name and other particulars are set out in the Client Information Statement and, where the context permits, includes any Authorized Person.
"Client Account" means the dealing and trading account(s) in the name of the Client.
"Client Money" has the meaning given in section 2 of the Regulations.
"Client Information Statement" means the client information statement prescribed by MS to be provided by the Client to MS in the form attached to this Agreement.
"Collateral" includes all moneys, amounts standing to the credit of any account which the Client holds with MS or any of MS's Associated Entities, investment securities, negotiable instruments, documents of title, and certificates of deposit as may be approved by MS from time to time as collateral (whether provided as Margin deposit or otherwise), any amounts owing by MS to the Client, and all the Client's rights, title and interest in the same and all proceeds of the foregoing.
"Compliance Reporter" means the person appointed by MS from time to time to review the operations of MS in accordance with the authorization granted by the Securities Commission.
"Contract" means Margined Foreign Exchange Contract, Margined Contract for Difference, Options, Futures or any other contracts that may be introduced by MS from time to time including Exchange Traded Contracts and Off-Exchange Contracts.
"Contract Note" means the contract note to be sent by MS to the Client confirming each transaction in Securities, showing details of the price, number of Securities traded, brokerage and any other fees or charges applicable.
"Corporation" shall mean a company or body corporate and includes any association (whether incorporated or not), governmental, semi-governmental or local authority or agency.
"Counter-party" means a person or entity that takes the contraposition of any Contract including but not limited to any registered bank or financial intermediary in New Zealand or globally.
"CSN" means New Zealand Common Shareholder Number.
"Dealing" means "dealing" as defined by section 37(5) of the Securities Markets Act 1988 (NZ).
"Default Rate" has the meaning given to that term in clause 13.2(e) of these General Terms and Conditions.
"Exchange Traded Contract" means any Contract that is dealt on an authorized Futures Exchange anywhere in the world.
"FIN" means Faster Identification Number or numbers issued by a Registry or associated Securities Exchange to a Client in respect of any given trading of relevant Securities.
"Futures Exchange" means an authorized futures exchange, recognized futures exchange, or exempt futures market and, for the purposes of this Agreement, also includes an options exchange.
"Futures Industry law" means the Securities Markets Act 1988 (NZ) as amended from time to time or, if that legislation should be repealed or cease to any extent to operate, then such legislation that shall be in force in New Zealand from time to time in partial or complete substitution for that legislation and references to specific provisions of that legislation shall be construed as references to the relevant equivalent provisions of that replacement legislation.
"General Terms and Conditions" means the general terms and conditions of Section 2 Part A of the Agreement.
"Give-Up Agreement" means a written agreement between MS, the Client and the Client's nominated Clearing participant as referred to in clause 7.4.
"Initial Margin" means the amount required to be paid by a person in respect of a Contract entered into, or proposed to be entered into, by that person.
"Investment Adviser's Disclosure Statement " means the disclosures required to meet the investment adviser's disclosure obligations as defined in the Securities Markets Act 1988.
"Investment Broker's Disclosure Statement " means the disclosures required to meet the investment broker's disclosure obligations as defined in the Securities Markets Act 1988.
"Liquidation Date" means the date specified by MS under clause 10.1 of Part B of Section 2 of this Agreement.
"Maintenance Margin" means the minimum required amount that is necessary to maintain the Client's position.
"Margin" means an Initial Margin or a Variation Margin.
"Margined Contract for Difference" means a leveraged contract for an agreed quantity of a commodity or financial instrument at an agreed price. The agreed amount of the commodity or financial instrument is not deliverable. During the set trading hours, this contract is valued and renewed real time at current market rates and the resulting profit or loss at the renewed contract price (the roll price") is debited or credited to the Client Account. The contract is continually renewed at the roll price until the Client closes the contract by taking an opposite position in the market for the same quantity of the commodity or financial instrument.
"Margined Foreign Exchange Contract" means a leveraged contract for an agreed quantity of foreign exchange at an agreed exchange rate. The agreed quantity of foreign exchange underlying this contract is not deliverable. During the set trading hours, this contract is valued and renewed real time at current market rates and the resulting profit or loss at the renewed contract price (the "roll price") is debited or credited to the Client Account. The contract is continually renewed at the roll price until the client closes the contract by taking an opposite position in the market for the same quantity of foreign exchange in the same currency. Margined Foreign Exchange Contracts are also known as "Rolling Spot Contracts".
"Minor" means a person under the age of 18.
"Off-Exchange Contract" means any contract offered by MS to the Client whereby MS acts as a principal on that contract, including without limitation Margined Contracts for Difference and Margined Foreign Exchange Contracts, and "Off-Exchange" has a corresponding meaning.
"Order" means an instruction to buy or sell Contracts or Securities, or an instruction to amend or cancel a previous instruction to buy or sell Contracts or Securities.
"Post Trade Agreement" means the agreement(s) entered into between a Trading Participant and a Post Trade Participant for the delivery and settlement of Trades by the Post Trade Participant on behalf of the Trading Participant.
"PPSA" means the Personal Property Securities Act 1999 (NZ).
"Product Disclosure Statement" or "PDS" means the document(s) having the same name which form(s) part of this Agreement.
"Registry" means the particular Securities registry which maintains the register of Security holders for the particular listed entity that issues the Securities traded by the Client pursuant to this Agreement.
"Regulations" means the Futures Industry (Client Funds) Regulations 1990 (NZ), as amended from time to time.
"Rules" means the rules, regulations and practices of any exchange that govern the conduct of business on markets operated by that exchange or of persons authorized to undertake trading or dealing activities on those markets. For the purposes of this definition, the exchange may be any regulated exchange on which MS deals or trades (including any Futures Exchange, Securities Exchange, commodities exchange, Clearing House or any other approved exchange operator anywhere in the world).
"Securities" includes securities, stocks, warrants, exchange and non-exchange traded funds, bonds, tradable contracts, and other negotiable instruments in New Zealand and overseas. "Securities Exchange" means any regulated exchange on which MS trades company shares, exchange traded funds, bonds and other relevant Securities, as well as other derivatives on these Securities, including warrants, options etc.
"Third Party" means anyone that MS, in its discretion, appoints to trade on any Futures Exchange or Securities Exchange, and/or settle and clear on any Clearing House on its behalf.
"Trade" has the meaning as defined in the NZX Participant Rules.
"Trade Agreement" means a written agreement between a Trading Participant and an NZX Advising Firm for the performance of Trades on behalf of that NZX Advising Firm by the Trading Participant. "Trading Participant" means a participant of a Futures Exchange and/or Securities Exchange that has direct market access to that exchange.
"Trading System" means any electronic dealing, trading, order routing or other automated system linking the Client to MS, MS's Associated Entities, any Third Party, Futures Exchange, Securities Exchange or any related Clearing House.
"Trust" means an equitable obligation under which a person having the control of property is bound to deal with that property either:
(a) for the benefit of definitive persons (of whom he may himself be one) and anyone of whom may enforce the obligation; or
(b) for some object or purpose permitted by law.
"Trustee" means a person to whom assets of a Trust are transferred, devised, or bequeathed, in trust for another, that other being called the beneficiary.
"Variation Margin" means the difference between the value of a contract at the time at which the contract is made and the value of the contract at any subsequent time.
1.2 In this Agreement, unless the context requires otherwise:
(a) capitalized terms, which are not otherwise defined in this Agreement, have the meaning given to those terms in the NZX Participant Rules;
(b) the singular includes the plural and vice versa;
(c) a reference to one gender includes a reference to the other gender;
(d) a reference to a statute, Rules and Regulations or a provision thereof includes a reference to them as amended or re-enacted from time to time;
(e) a reference to a person includes a reference to a company or an incorporated entity, a Trust, a partnership or unincorporated entity and a deceased estate;
(f) headings are given for convenience only and are not to be construed as part of this Agreement; and
(g) the expressions "accounts receivable", "investment securities", "negotiable instruments" and "security interest" have, if and where used, the respective meanings given to them under, or in the context of, the PPSA.
2. ACKNOWLEDGEMENTS & REPRESENTATIONS
2.1 The Client hereby appoints MS to deal in Contracts on any Futures Exchange or Off-Exchange, and trade Securities on the Clients behalf. In so doing the Client acknowledges that:
(a) the Client has given careful consideration to its objectives, financial situation and needs and has formed the opinion that dealing in Contracts and/or trading in Securities is suitable for the Client's purposes;
(b) dealing in any Contracts and trading in any Securities incurs the risk of loss as well as the prospect of profit;
(c) MS does not, nor do any of its Directors, officers, agents or employees, guarantee repayment of capital or payment of income in respect of any investment made by MS on the Client's behalf;
(d) dealing in Contracts and trading in Securities may create an obligation to give or take delivery or, in the case of Contracts, to make a cash adjustment in accordance with the terms of that Contract; and
(e) MS will at all times be dealing or trading on all relevant markets, whether conducted by a Futures Exchange or Securities Exchange or not, as a principal, notwithstanding that in certain circumstances MS will be acting on the instructions of the Client, and MS will incur obligations to the relevant Counter-party, Third Party or Clearing House as principal, even though the transaction has been entered into as a result of instructions received from the Client.
2.2 The Client has received a copy of MS's Product Disclosure Statement for the Off-Exchange Contracts they wish to deal in or have dealt in. These documents set out, amongst other things, some of the risks and other significant aspects of dealing or trading in these products. MS will not be further obliged to warn the Client of the nature of any risks involved in any transactions MS provides to the Client under this Agreement or provide the Client with written risk warnings in relation to such transactions. The Product Disclosure Statement issued by MS for a particular product:
(a) sets out disclosures required to be given under Futures Industry Law; and
(b) provides information about some of the types of products in respect of which MS may deal; and
(c) sets out some of the risks and other significant aspects of trading or dealing in those products.
2.3 The Client hereby represents that the Client has the ability to evaluate and understand the terms, conditions and risks of the transactions entered into hereunder (whether or not a Contract is entered into or a Security is traded on the basis of information supplied by MS) and the Client is willing and able to accept those terms and conditions and to assume (financially and otherwise) those risks.
2.4 The Client represents, warrants and undertakes to MS that, both at the date of this Agreement and at the time of any transaction MS may enter into with or for the Client:
(a) the Client has full power and authority to enter into this Agreement and any resulting transaction and to perform all its obligations under it;
(i) where the Client is an individual, the Client has legal capacity to execute this Agreement;
(ii) where the Client is a company or incorporated entity, the Client has been and is duly formed under the laws of the place of its formation and has power and authority to deal in Contracts and trade in Securities, and the person executing this Agreement has full power and authority to execute this Agreement on behalf of the Client and a certified copy of the board resolution is required to be executed and on file with MS;
(iii) If the Client is a Trust, the Client confirms that it has the power under the Trust Deed to invest the Trust funds in the manner the Client proposes and confirms the Client has provided MS with a copy of the provisions in the Trust Deed or a Trustee Certificate permitting such investment and confirming any person's authority to act on behalf of the Trust;
(iv) where the Client is a partnership, the Client has power and authority to deal in Contracts and trade in Securities, and the person executing this Agreement has full power and authority to execute this Agreement on behalf of the Client and a certified copy of the partnership agreement is required to be on file with MS;
(v) where the Client is the executor of a deceased estate, the Client has legal capacity to execute this Agreement;
(b) the Client contracts as principal only and will use its Client Account with MS only for dealing and trading on the Client's own account and no other person has or will have any interest in any Contract or Security or in any account that MS holds on the Client's behalf. If the Client undertakes transactions on behalf of any other person (including a Company or a Trust) the Client will advise MS and ask MS to set up another account;
(c) the Client has adequate resources to enter into and perform any dealing or trading, which it decides to undertake;
(d) in executing this Agreement and in giving effect hereto the Client will not infringe any provision of any deed or other document or agreement to which the Client is a party;
(e) all moneys or other assets delivered to MS as Margin or Collateral or remitted to or deposited with MS are beneficially owned by the Client and are and will remain free from any lien, charge, security interest or other encumbrance not specifically contemplated herein. The Client will not permit any Collateral to be subject to any right of set-off or combination of accounts (other than rights that arise solely by operation of law or under this Agreement) and shall not do or omit to do, or allow to be done or omitted to be done, anything which could adversely affect any Collateral or the security interest under this Agreement;
(f) all Securities the Client instructs MS to sell or hold on the Client's behalf are legally or beneficially owned by the Client free of any security interest, assignment or other impediment;
(g) no part of any funds remitted to MS by the Client form any part of proceeds derived from any criminal activity including, without limitation, narcotics, smuggling, terrorism, tax evasion, fraud and theft or used for any money laundering or terrorist financing activities;
(h) the Client will provide to MS, on request, such information regarding its financial and business affairs and identity as MS may reasonably require, including any information required to comply with the Financial Transactions Reporting Act 1996 (NZ), and all information given to MS is true and complete.
2.5 The Client hereby agrees that:
(a) reports to the Client on the execution of instructions and/or Contract Notes by MS shall be prima facie proof of such instructions and accounts unless objected to immediately upon communication thereof to the Client. The Client accepts that any objection must be confirmed in writing by the Client within two business days of the report or Contract Note being deemed to be received by the Client;
(b) A notice signed by any one of MS's directors, managers or other authorized employees, stating the amount of monies due and payable by the Client shall be prima facie evidence of the same;
(c) the Client appoints MS as its agent for the purpose of dealing in Contracts and/or trading Securities in accordance with the terms of this Agreement, should the Client fall ill;
(d) MS may transfer from the Client's other account(s), if any, such funds as may be required to meet obligations as a result of transactions between the Client and MS;
(e) all money received by MS for the Client's credit will be applied firstly in payment of any interest the Client owes MS and secondly in payment of any indebtedness to MS before being applied to the Client's general benefit; and
(f) MS may require a suitable third party (such as a director, shareholder or beneficiary) to provide a personal guarantee or a security against liabilities in respect of any account for which the Client is responsible, or MS may, at its sole and unfettered discretion, refuse to open or discontinue any account at any time unless the Client agrees to personally indemnify MS against any costs or losses of any kind which MS may suffer as a result of any failure by the Client to comply with this clause. In the case of joint accounts such indemnification will be considered to be joint and several.
2.6 MS is entitled, in its reasonable opinion, to determine that an emergency or an exceptional market condition exists. Such conditions shall include, but are not limited to, the placing in halt, suspension or delisting of certain Contracts or Securities, the suspension or closure of any market or the abandonment or failure of any system, data feed, Counter-party or event to which MS relates its quote or the occurrence of an excessive movement in the Client's margin level and/or underlying market or MS's reasonable anticipation of the occurrence of such a movement and all of the matters and circumstances referred to in clause 29.6 of these General Terms and Conditions. In cases such as these that relate to Contracts, the Client unconditionally authorizes MS to increase its margin requirements and/or close any or all of the Client's open margin deals. In addition, in all cases related to Contracts or Securities, the Client authorizes MS to refuse to deal and/or suspend or modify the application of all or any of the terms, including but not limited to, altering the last time for dealing a particular Contract or Security, to the extent that the condition makes it impossible or impracticable for MS to comply with the term in question.
3. MS'S SERVICES
3.1 The Client hereby acknowledges the following in relation to the services offered by MS:
(a) MS is principally in the business of providing online trading facilities allowing Clients to efficiently deal in Contracts and trade in Securities on an execution only basis, which means that generally MS will not advise the Client regarding the merits of a particular transaction and will merely carry out the Client's instruction.
(b) However, MS may, in its sole and unfettered discretion, provide information to the Client including:
(i) historical and/or factual information;
(ii) general advice, which may include a recommendation, opinion or guidance about any of MS's products, but without taking into account the Client's objectives, financial situation or needs; or
(iii) where the Client has agreed to receive, and MS has agreed to provide, personal advice at an additional cost agreed with MS. MS will consult with the Client regarding the Client's objectives, financial situation or needs and will provide investment advice or specific recommendations based on this information given by the Client. However, any decision as to whether particular Contracts or Securities will meet the Client's investment needs remains with the Client.
(c) General advice may be in the form of free publications from MS or research conducted by an external entity. Any recommendation, opinion or guidance will be based upon research conducted by MS and/or external analysts but are still only matters of opinion and are subject to a number of limitations. MS makes no representations, warranties or guarantees (express or implied) as to the accuracy, adequacy, completeness, truth, value, currency or otherwise of any recommendation, opinion or guidance whatsoever communicated to the Client. The Client agrees that MS will take no responsibility for such recommendation, opinion or guidance and no reliance will be placed thereon. If the recommendation, opinion or guidance is incomplete then MS will use its best endeavors to inform the Client but will not be liable for any omission to do so. The Client must assess whether any recommendation, opinion or guidance is suitable to the Client's own investment objectives, financial status and particular needs.
(d) Notwithstanding anything to the contrary in this Agreement, the Client acknowledges that, in respect of Exchange Traded Contracts and Securities, Orders received from the Client, other clients and for MS's own account will be executed in the order they are received and recorded, and Orders will not be aggregated by MS but may be by Third Parties.
(e) It is possible that errors may occur in the prices of transactions quoted by MS. In such circumstances, MS shall not be bound by any transaction which purports to have been made (whether or not confirmed by MS) at a price which:
(i) MS is able to substantiate to the Client was manifestly incorrect at the time of the transaction; or
(ii) was, or ought to have reasonably been known by the Client to be incorrect at the time of the transaction.
(f) MS, in dealing in Contracts or trading in Securities on behalf of the Client, may require the buying or selling of foreign currency and the exchange rate will be determined in good faith by MS at its sole and unfettered discretion; and MS shall be entitled, without prior notice to the Client, to make the currency conversions necessary or desirable for the purposes of fulfilling the Client's obligations. Any such conversion shall normally be made by MS as principal at a rate which reflects the size, liquidity and timing of the transaction. MS shall disclose to the Client the relevant rate on the confirmation or Contract Note but will be entitled to retain any profit MS or any Associated Entity may derive from the transaction. Any foreign exchange risk arising from such a transaction shall be borne by the Client.
(g) The Client may at any time give MS an instruction either generally, or in relation to a particular transaction, as to how the Client wishes an Order to be implemented.
3.2 MS may provide the Client with access to a Trading System, as agreed between the Client and itself. The terms and conditions applicable to Contracts and Securities executed through the Trading System, and some associated risks, are outlined in clause 23 of these General Terms and Conditions.
4. APPLICATION OF LAW & RULES
4.1 The Client and MS agree that in respect of this Agreement the Client and MS are subject to and are bound by:
(a) the Futures Industry Law and other legislation relevant to dealing and trading activities ;
(b) the Rules;
(c) the Regulations;
(d) this Agreement; and
(e) any Trade Agreement, any Post Trade Agreement and any Give- up Agreement.
5. RISK WARNING
5.1 The capital value of the Client's investments may fall and the Client may not earn any income from their investments. MS does not, nor do any of its directors, officers, agents or employees, guarantee the repayment of capital or the payment of income in respect of any investment made by MS on the Client's behalf. 5.2 The Client's investments and any Contracts and Securities may be subject to a number of risks including, but not limited to, market risk, liquidity risk, company risk, sector and country exposure risk, default risk, currency exchange risk, economic and political risk. In addition to the general risks referred to in this clause, the Client should note the following specific risks:
(a) the risks of loss in dealing in Contracts can be substantial and can exceed any deposit or margin that has been provided to cover the Contracts. The maximum loss in buying an option or warrant is the amount of the premium or the price paid. The risks in selling an option can be the same as dealing in the underlying Contract or trading in the underlying Security;
(b) the risk of equity investments is that it may not be possible to recoup the original investment for reasons such as the:
(i) sale price is less than the price paid;
(ii) shares cannot be sold as there is no market for them;
(iii) company is placed in receivership or liquidation or is insolvent.
(c) the risk of Short Selling Securities is that there could be an adverse market move and the Client could suffer loss as a consequence;
(d) Increased risks are associated with:
(i) using borrowed money to purchase investments or applying leverage and gearing via options, warrants, futures or partly paid Securities; or
(ii) buying and investing in Securities that are not quoted on a recognized Securities Exchange.
(e) the risks of interest bearing investments are:
(i) interest payments may not be timely or may not be made in full or at all;
(ii) it may not be possible to recoup the original investment for reasons such as the:
(1) sale price is less than the price paid;
(2) interest bearing Securities cannot be sold as there is no market for them; or
(3) issuer is placed in receivership or liquidation or is insolvent.
(f) the risks of managed fund investments are that it may not be possible to recoup the original investment and, in some managed funds, expected income payments may not be timely or may not be made in full or at all.
5.3 The Client's investments or any Contracts or Securities the Client buys may not be appropriate or fit for the purpose for which the Client purchased them.
6. ORDERS, INSTRUCTIONS AND GENERAL COMMUNICATIONS
6.1 The Client may communicate their Orders to MS in writing via a Trading System approved by MS or verbally over the phone to MS. If the Client gives Orders or instructions in writing, such instructions must be received by MS allowing sufficient time for MS to act upon them. The Client agrees that MS may in its absolute discretion refuse to accept an Order or any other instruction for the Client's account.
6.2 The Client acknowledges that it is the Client's responsibility to ensure that all details relating to the Client's Orders are accurate, including without limitation the name of the Contract or Security bought or sold, the volume and the total value of the Order.
6.3 If the Client wishes to amend or cancel an Order or instruction, the Client must do so by giving specific instructions to MS for the amendment or cancellation of that Order or instruction. The Client agrees that acceptance of an instruction to withdraw or amend an existing Order or instruction is always subject to MS receiving the instruction in time for the appropriate action to be taken. In the event that part of the Client's Order is filled prior to the amendment or cancellation instruction being effected, the Client will be liable to settle the partially filled Order.
6.4 Orders may be given either in writing or verbally but MS accepts no responsibility for any errors or omissions resulting from misunderstandings in respect of oral or written instructions.
6.5 Where MS believes an Order or instruction to be ambiguous, unclear or incomplete, MS reserves the right not to accept that Order or instruction, or to defer action or seek further action as MS sees fit. In any such event, MS will use all reasonable endeavors to notify the Client of its decision in a timely manner and will not be liable for any price movements or fluctuations or any loss, cost or expense suffered by the Client as a result. If an instruction is accepted, MS will act in accordance with the Client's instructions.
6.6 The Client shall promptly provide to MS any instructions which MS may require. If the Client does not provide such instructions promptly, MS may, in its absolute discretion, take such steps at the Client's cost as MS considers necessary or desirable for its own protection or the protection of the Client. This provision is similarly applicable in situations when MS is unable to make contact with the Client.
6.7 The Client agrees that the Client will be liable for all fees, costs and charges relating to an Order or instruction and will not make Orders that will breach, or are likely to cause MS to breach, any of the Rules.
6.8 The Client will be liable for any Order or instruction placed with MS, even in the event of unauthorized Orders or instructions or interference with any Orders or instructions sent to MS. Once MS has effected an Order or instruction and the relevant deal or trade done or action taken, the Order or instruction cannot be revoked although MS may, at its sole and unfettered discretion, in certain circumstances accept a modification to an Order or instruction).
6.9 Orders can be either at market price or a pre-agreed price. MS agrees to use its best endeavors to undertake the transaction at the required price or better.
6.10 Subject to the Rules, a Futures Exchange or Securities Exchange has the right to amend or cancel an Order. The Client acknowledges that this is outside of MS's control and therefore agrees to indemnify MS in the event of any resulting loss or liability.
6.11 The Client acknowledges that all Orders related to Securities which are received outside Trading Hours will not be implemented until the commencement of the next Trading Day.
6.12 A list of Order types will be published on MS's website and updated from time to time.
7. MS'S ASSOCIATED ENTITIES AND THIRD PARTIES
7.1 MS will be entitled to delegate its responsibilities under this Agreement to such persons as MS thinks appropriate, including its Associated Entities.
7.2 The Client acknowledges that MS may from time to time appoint Clearing Participants and/or Trading Participants as Third Parties to trade, deal (as the case may be), clear and settle Contracts and Securities on Futures Exchanges and Securities Exchanges and their related Clearing Houses.
7.3 MS shall not have any liability for any loss, which the Client may sustain as a result of any act or omission of any of its Associated Entities or Third Parties.
7.4 Any Orders will be allocated to the Clearing Participant of MS's choice, unless clearing instructions are otherwise agreed in writing between MS, the Client and the Client's nominated Clearing Participant. In circumstances where such agreements have been entered into, the relevant Contracts or Securities will be given up to the Client's nominated Clearing Participant. Subject to any other rights MS may have under this Agreement or otherwise, in the event that the Contracts or Securities are not accepted by the Client's Clearing Participant, the relevant Contracts or Securities will be allocated to MS's nominated Clearing Participant in MS's name and the Client will indemnify MS for any costs, losses or liabilities that accrue from such non-acceptance.
8. MS'S RIGHT TO DEAL & TRADE
8.1 The Client agrees and acknowledges that:
(a) MS, its directors, employees or Associated Entities may dealer trade as principal on their own accounts or deal or trade as principal for MS by selling the investment concerned to the Client or buying it from the Client and they may match the Client's transaction with that of another client by acting on that other client's behalf as well as the Client's;
(b) MS may (if permitted by the Rules), knowingly or unknowingly, as either a principal or on behalf of another person, take the opposite side to the Client in any Contract or Security, and the Client acknowledges MS's right to do so and to charge the Client such amounts as are permitted by clause 13 of these General Terms and Conditions as if MS had not taken the opposite side to the Client.
9. RIGHTS OF MS TO REFUSE TO DEAL OR TRADE
9.1 MS reserves the right to refuse to act on behalf of the Client in relation to any dealing or trading in any type of Contracts or Securities or to limit the number of open positions held on behalf of the Client or both. MS will inform the Client of any refusal at or before the time of the Client placing the Order or as soon as possible thereafter. Such refusal shall be without prejudice to any other rights and powers under this Agreement.
9.2 Strategies aimed at exploiting errors in prices (commonly known as "sniping") are not accepted by MS. If MS, at its sole discretion in good faith, determines that the Client is taking advantage or attempting to take advantage of such misquotes or is performing other forms of abusive transactions, MS is entitled to take one or more of the following counter-measures:
(a) adjust the price spreads available to the Client;
(b) restrict the Client's access to streaming, instantly tradable quotes, including providing manual quotation only;
(c) retrieve from the Client's account any historic trading profits that have been gained through such abuse of liquidity (as determined by MS in its sole discretion in good faith) at any time; and/or
(d) terminate this Agreement immediately by written notice to the Client.
10.1 MS makes no representation as to the suitability of the Client's investments. The Client needs to make their own decision in this respect.
10.2 The Client has no rights, whether by way of subrogation or otherwise, against any person other than MS in respect of Contracts or Securities dealt or traded on a Futures Exchange, Securities Exchange or market or dealt or traded in pursuant to the Rules, regulations or by-laws of a Futures Exchange, Securities Exchange or market, except to the extent (if any) provided by any applicable law.
10.3 MS is not able to exercise control over any services that MS does not supply directly to the Client. Neither MS nor any of its staff shall be under any liability whatsoever for any loss or damage sustained by the Client arising from any circumstances beyond MS's reasonable control or from any actual or proposed transactions as a result of or in connection with the provision of any services to which this Agreement applies except in so far as, and then only to the extent that, such loss or damage is caused by negligence or wilful default on MS's part or on the part of its staff or any failure by MS to comply with all applicable rules and regulations in New Zealand.
10.4 Where the Client fails to settle or complete a deal or trade or fails to pay any amount due, MS has direct rights against the Client, including the right to close out the Contract or buy or sell the Securities relating to the instruction or Order. This obligation applies to the Client, regardless of whether they instructed MS directly or instructions are given on their behalf by an Authorized Person.
10.5 Both before and after the termination of this Agreement, the Client agrees to be liable for and to indemnify, keep indemnified and hold harmless MS (including MS and its Associated Entities and Third Parties and their respective directors, officers, employees, contractors and agents) from all claims, losses, actions, demands, amounts, proceedings, liabilities, damages and costs (including legal costs on a solicitor and client basis) whatsoever and howsoever arising, paid, suffered or incurred by MS directly or indirectly arising out of or in connection with:
(a) any action taken by MS under this Agreement, including undertaking or refusing to undertake the Client's instructions in respect of any dealing or trading of any Contract or Security (including MS having to pay funds to any other person in circumstances where the Client has failed, other than as a result of MS's failure to send a confirmation or Contract Note, to provide MS with the necessary funds for the transaction by the relevant due date); or
(b) any failure by the Client to strictly comply with the terms and conditions of this Agreement.
10.6 Every exemption or limitation of liability, defense, immunity or indemnity available to MS shall extend to all MS's employees, agents and contractors and to all Associated Entities and Third Parties and to all entities which may distribute MS's publications. Those parties are the only persons intended to take a benefit under the Agreement for the purposes of the Contracts (Privity) Act 1982 (NZ).
10.7 The Client should seek professional tax advice before investing. The impact of taxation will vary depending upon each person's individual circumstances. MS shall not be liable for taxation consequences of any transaction nor shall MS be liable for taxation charges arising for any reason.
10.8 Where MS provides investment advice, it will be limited to the products and services provided in MS's Investment Adviser's Disclosure Statement and Investment Broker's Disclosure Statement provided to the Client and is solely in relation to the funds which the Client pays to MS for the purposes of investment. MS accepts no responsibility or liability for the Client's investments outside this service or in relation to the Client's insurance, retirement, personal asset planning, taxation or legal needs. MS recommends that the Client consults a suitable adviser if such advice is required before making a decision to deal or trade in any Contracts or Securities.
10.9 In the absence of MS's gross negligence, fraud or dishonesty, MS shall not be liable or responsible to the Client for any loss including consequential and other indirect losses), expense, cost, (liability or damage (together referred to as "Loss") suffered or incurred by the Client in respect of any:
(a)failure of any transaction to realize any profits;
(b) advice or recommendation given by MS or MS's consultants to the Client;
(c) technical failure as set out in clause 23 of these General Terms and Conditions;
(d)provision of services by MS pursuant to this Agreement;
(e) Loss due to actions taken by MS according to its rights under this Agreement; or
(f) any external party (including any Counter-party to, or any person whom MS engages in connection with, a transaction) failing to perform its obligations to MS and, in such circumstances, MS shall not be liable to perform its obligations to the Client to the extent that it is unable to do so as a result of that other party's default.
10.10 Without limiting any term of this Agreement, MS is not liable where MS has taken reasonable endeavors to protect the Client's FIN from unauthorized use and unauthorized access.
10.11 Subject to the terms of this Agreement, MS will in good faith act on all notices (as per clause 28 of these General Terms and Conditions) and all Orders and instructions (as per clause 6 of these General Terms and Conditions) that the Client provides in connection with the operation of a Client's Client Account. MS accepts no responsibility or liability for the accuracy or authenticity of those instructions or for any loss that may result or the Client may suffer as a result of MS acting or refusing to act on those instructions or of MS canceling any Order or restricting or prohibiting the Client from dealing or trading in Contracts or Securities.
10.12 MS accepts no responsibility or liability for the failure of any email, fax or other electronic communication to reach the intended recipient. Due to the nature of electronic mail (Contract Note, email, fax or other electronic communication), circumstances beyond MS's control could at times inhibit the delivery of electronic mail. In such cases MS will, when applicable, endeavor to despatch a hard copy to the Client. MS accepts no responsibility for the consequences of undelivered electronic mail.
10.13 MS shall not be liable for any loss of opportunity whereby the value of the Client Account may have been increased nor for any reduction in the value of the Client's account as a result of market movements.
11.1 The Client acknowledges that MS is not obliged to accept them as a client, nor to provide any explanation for refusing an application, where a decision is made to do so.
11.2 The Client and any Authorised Person(s) may instruct MS to deal or trade in Contracts or Securities. MS may at any time, and at its sole discretion, decline the Client's instructions or cancel any instruction or Order or generally prohibit or restrict the Client from dealing or trading any Contracts or Securities, without the need to provide any reason for its decision. Without limiting the generality of the foregoing, MS may refuse to act on the Client's behalf where:
(a) dealing or trading in the relevant Contracts or Securities has been suspended or halted for any reason whatsoever or any other event covered by clause 2.6 of these General Terms and Conditions has occurred or is, in MS's reasonable opinion, likely to occur and the Client has not reconfirmed instructions;
(b) MS considers that the Order is likely to breach:
(i) the Futures Industry Law or any other legislation relevant to dealing and trading activities ;
(ii) the Rules;
(iii) the Regulations;
(iv) in relation to an Off-Exchange Contract, the terms and conditions governing that Off-Exchange Contract;
(v) this Agreement; and
(vi) any Trade Agreement, any Post Trade Agreement and any Give-up Agreement; or
(c) MS considers that the Order is likely to:
(i) be inappropriate, unethical or likely to negatively impact on MS's reputation and integrity within the market; or
(ii) create a disorderly market in the Contracts or Securities.
11.3 The Client agrees that MS is not liable for any financial consequence or inconvenience arising from circumstances where MS uses its sole and unfettered discretion to cancel a transaction or refuses to accept an instruction from the Client.
12. SECURITY INTEREST
12.1 As security for the payment or delivery of all monies that are payable by the Client, and the performance of all of the Client's obligations under this Agreement, the Client hereby grants a security interest over all Collateral provided by or held by any person on behalf of the Client to, or for the benefit of, MS at any time including, without limitation, the benefit of all contractual rights and obligations under this Agreement and under any transaction. The security interest so far as concerns all the Client's accounts receivable, and all of the Client's present and future rights in relation to any accounts receivable, will take effect as a transfer. MS shall have all of the rights of a secured party with respect to any such Collateral in respect of which MS has a security interest and the Client will, at MS's request, take such action as may be required to enable MS to perfect or enforce any security interest and irrevocably appoint MS as their attorney to take any such action on the Client's behalf.
12.2 Where Collateral is held as a security interest, MS will not assume responsibility for claiming and receiving dividends, interest payments and other rights. MS will not act on the Client's instructions regarding the exercise of conversion, subscription and voting rights, or in respect of takeovers, capital reorganizations and other offers. Notwithstanding anything in this Agreement, the Client further acknowledges that MS is not, through the use of any nominee or custodian, providing the Client with any kind of safe custody service and that any Collateral provided by the Client to MS under this Agreement is solely for the purposes set out in clause 12.1 of these General Terms and Conditions above.
12.3 Until the Client has paid or discharged in full all moneys and liabilities owed to MS, and performed all obligations under any transactions contemplated under this Agreement, any moneys from time to time outstanding to the credit of any of the Client's accounts with MS shall not be due and payable to the Client, although MS may, in its absolute discretion make payments to the Client from such accounts, or otherwise exercise MS's rights of set-off and/or combination and/or consolidation.
12.4 In order to effect transactions for the Client, the Client confirms that MS may (subject to an obligation to account to the Client for property of the same nature and description but not necessarily identical to the property originally delivered to MS and subject to MS's other rights under this Agreement) without prior notice to the Client, deposit, charge or pledge any Collateral the Client may deliver to MS to any Securities Exchange, Futures Exchange, Clearing House, or other Third Party on terms that such party may use or enforce, as the case may be, such deposit, charge or pledge in satisfaction of any obligations that MS may incur to such party or of any such obligations incurred by the Client or by any other customer. In respect of Contracts, clause 2 of Part B of this Agreement also applies.
12.5 Notwithstanding anything to the contrary in this Agreement, if any amount owing or payable by the Client to MS is not paid by the due date for payment thereof then, without prejudice to MS's rights, the Rules or otherwise, MS may sell any Securities or other documents and use any moneys now or hereafter held by MS on behalf or in respect of the Client for or in relation to any account or matter whatsoever and without being responsible for any loss or damage occasioned thereby and may apply the proceeds in reduction of the Client's liability to MS.
13. FEES & CHARGES
13.1 MS's charges from time to time (as set out initially in the Investment Broker's Disclosure Statement and, if applicable, the Investment Adviser's Disclosure Statement) will be levied in accordance with this Agreement or as otherwise notified to the Client, either in writing or verbally, prior to the relevant dealing or trading taking place. MS may share its charges with or receive remuneration from intermediaries introducing business to MS or other parties. Any changes to the charges specified in this Agreement shall be notified to the Client in writing, unless notified to the Client verbally prior to the relevant dealing or trading taking place, and will take affect on the date mentioned in the relevant written or verbal (as the case may be) communication.
13.2 The Client agrees to pay:
(a) commission at such a rate as is notified by MS as well as any other transactional fees charged or levied by MS or a Futures Exchange or Securities Exchange;
(b) all stamp duty, duties and taxes payable on this Agreement or on Contracts or Securities entered into on behalf of the Client or both;
(c) any costs as may be disclosed in the Investment Broker's Disclosure Statement or the Investment Adviser's Disclosure Statement or notified to the Client from time to time, including without limitation, swap charges, fund withdrawal fees, data feed costs.
(d) all amounts payable as a result of making or taking delivery or making a cash adjustment in accordance with the terms of the relevant Contract or Security;
(e) an account maintenance fee of up to USD $5 per week or equivalent may be charged against trading accounts which are inactive for three months with balances of USD $50 or less or equivalent. Accounts that are inactive with balances of 0 or less may be disabled. MS will write to clients prior to any such disabling taking place. Clients have 30 days in which to respond. Any client whose account is disabled may have to recommence the application process
(f) all expenses and other amounts incurred by MS as a result of the Client's default under the terms of this Agreement, including, without limiting the generality of the foregoing, all legal costs and expenses on a solicitor/client basis both before and after any judgment; and
(g) where any amount owing from the Client to MS under this Agreement is overdue (including, without limiting the generality of the foregoing, any amounts due as a result of the Client's Contract being closed out or Securities being bought or sold), MS may, at its sole and unfettered discretion, charge the Client interest on the net amount owing in their Client Account at the rate of 5% per annum above the overdraft rate charged by MS's bankers (Default Rate), or at a rate agreed in writing between MS and the Client and such interest shall accrue on a daily basis from the date when the amount was due (irrespective of any grace period) to the date of its final payment in full.
14. DISPUTE RESOLUTION
14.1 If you have a complaint, you should contact MS, MS will endeavor to quickly and satisfactorily resolve the complaint, but in the event that you are not satisfied, you are invited to put your complaint in writing to:
The Compliance Manager
MS Investments Limited
125 Grafton Road
If we cannot agree on how to fix the issue, or if you decide not to use the internal complaints scheme, you can contact Financial Dispute Resolution Service ("FDRS"). FDRS is an independent approved dispute resolution scheme for settling disputes between people and businesses, and the organisations that provide them with financial services and advice. This service will cost you nothing, and will help us resolve any disagreements. You can contact Financial Dispute Resolution Services at:
Financial Dispute Resolution Services
P.O. Box 2272
Level 9, 109 Featherston Street
Telephone : 0508 337 337
International calls: +64 4 910 9952
15.1 The Financial Markets Authority's enquires into, and can take enforcement action on misleading and illegal investment schemes, offer documents and advertisements for securities. The Authority oversees the operations of the stock exchange, and disclosure and practices of listed companies.
15.2 If you are not satisfied with MS's response to your complaint regarding any practice relating to securities or activities on the securities markets, as an alternative to FDRS you may contact either of these regulators directly at the following addresses:
Financial Markets Authority
PO Box 106 672
Level 5, Ernst & Young Building
2 Takutai Square, Britomart
Telehone: 0800 434 567
International calls:+64 3 962 2698
Level 2, NZX Centre
11 Cable Street
PO Box 2959
Telephone: +64 4 472 7599
Australian clients should refer to the Financial Services Guide (FSG) for more information on MS's complaint resolution processes.
16.1 This Agreement may be terminated at any time by one party giving written notice to the other to that effect.
16.2 Termination does not affect the existing rights and obligations of the Client or MS at termination. Upon termination of this Agreement, MS will close out all open positions and close out, abandon or exercise any options not yet exercised, entered into by MS for the Client, unless, in accordance with a direction from the Client, those Contracts or Securities are transferred to another participant of a Futures Exchange or Securities Exchange in accordance with the Rules.
16.3 On termination of this Agreement, MS shall deliver to the Client as soon as practical thereafter:
(a) the scrip or the certificates of title in respect of the Client's investments registered in the Client's name; and
(b) any cash along with interest earned (if applicable) to the date of payment less any fees owing to MS, that are held by MS or any custodian as at the date of termination.
16.4 In an Event of Default (as defined in clause 10.1 of Part B of this Section 2), automatic termination will apply, as provided for in that clause.
17. JOINT ACCOUNT HOLDERS
17.1 If the Client consists of more than one person, this Agreement shall bind them jointly and each and all of them severally and jointly and each of those persons is authorized to issue instructions and give receipts to MS in relation to any dealing or trading activities or other matters to which this Agreement relates, unless MS receives written instructions to the contrary.
17.2 Where the Client is comprised of more than one person, any instructions, notice, demand, acknowledgment or request to be given by or to the Client under this Agreement may be given by or to any one of the persons comprised in the Client (each a "Client"). MS is not required to verify that any such Client has any requisite authority from any joint account holder and such Client may give MS an effective and final discharge in respect of any of MS's obligations.
17.3 Where the Client comprises a Trust, the Client will notify MS of any changes in the Trustee(s) of the relevant Trust and confirm that, on the basis of competent legal advice, the Client is satisfied that each Trustee has all the necessary powers to enter into this Agreement. Further, any instruction, notice, demand, acknowledgment or request to be given by or to the Client under this Agreement may be given by or to any one of the Trustees, unless otherwise instructed. MS is not required to verify that any such person has any requisite authority from any other Trustee.
18. AUTHORISED PERSONS
18.1 MS is authorized to act upon the written or verbal instructions of the Client and any Authorized Persons, to the extent that any Orders placed by an Authorized Person shall be deemed to have been placed by the Client. MS may also receive and give information on the Client's behalf from and to the Client and any Authorized Persons.
18.2 In nominating an Authorized Person, the Client warrants that the Authorized Person is authorized to place Orders or give instructions, that they have read and will comply with the terms and conditions of this Agreement and that the Client personally indemnifies MS against any costs or losses MS may suffer as a result of the Authorized Person giving incorrect or unauthorized Orders and instructions or failing to comply with this Agreement.
18.3 MS may (but shall not in any circumstances be obliged to) require confirmation from the Client in such form as MS may reasonably request if an instruction from an Authorized Person is to close a Client Account or remit money due to the Client or if it appears to MS that such confirmation is necessary or desirable.
18.4 The Client shall indemnify MS and keep MS indemnified against all losses, which MS may suffer as a result of any error in any instruction given by an Authorized Person or as a result of MS's acting on any instruction, which is, or appears to MS to be, from an Authorized Person.
19.1 If a Minor applies to become a Client, then MS require the Minor and one of the Minor's parents or the Minor's guardian to be party to this Agreement.
19.2 Any reference to "the Client" in this Agreement is a reference to the relevant parent or guardian of the Minor and, where appropriate, to the Minor.
19.3 While this Agreement will be between MS and the relevant parent or guardian of the Minor, any Securities that the parent, guardian or Authorized Person instructs MS to purchase will be registered into the name of the Minor or otherwise as directed in accordance with this Agreement.
20. CONSUMER GUARANTEES ACT 1993 (NZ)
20.1 The Client agrees that where the Client acquires or holds itself out as acquiring MS's services under this Agreement, for the purposes of a business, the Consumer Guarantees Act 1993 (NZ) will not apply.
21. PRIVACY ACT 1993 (NZ)
21.1 MS is authorized to:
(a) collect, hold and disclose personal information about the Client or any Authorized Person, for the purposes of carrying out the Client's instructions, to conduct MS's credit, verification or security checks, administering the Client's account and for MS's own marketing purposes;
(b) disclose certain information about the Client or any Authorized Person where required under the Rules or at law;
(c) request the Client at any time to provide the names of one or more credit references to assist in assessing the Client's credit worthiness, and to exchange credit information about the Client with them and with credit reporting agencies at any time;
(d) act upon the instructions of any person who supplies the Client's FIN to MS (without further enquiry) and to assume the genuineness and validity of all instructions given in conjunction with the supply of the Client's FIN;
(e) report any overdue payments owing to MS by the Client to other credit providers or credit reporting agencies;
(f) terminate the Client's account with MS and/or suspend MS's services to the Client if the Client fails to provide MS with any relevant information that MS requests from the Client;
(g) record telephone conversations, internet conversations (chats) and meetings which MS may have with the Client (or any external party). The Client agrees and acknowledges that:
(i) electronic recording by MS, or by a Futures Exchange, Securities Exchange, Associated Entity or Third Party on behalf of MS, of the Client's telephonic, or internet conversations (chats) with MS, may be made with or without an automatic tone or other warning device;
(ii) the recordings or transcripts from such recordings may be used for any purpose which MS or the Futures Exchange or Securities Exchange deems desirable, including their use as evidence by either party in any dispute or anticipated dispute between MS and the Client; and
(iii) In the event of any dispute or anticipated dispute with respect to the Client's dealings or trades, the Client may request a copy of any relevant recording and MS will provide a quote for the reasonable costs incurred by it in providing that copy. Once the Client has accepted the quote, MS will duly provide the recording;
(h) except as authorized above in (a) to (g) above, MS undertake not to provide personal information acquired in connection with this Agreement (including the Client's FIN) to other persons unless the Client or the Authorized Person authorize that disclosure pursuant to, or otherwise under, the Privacy Act 1993 (NZ).
21.2 MS, whose registered office and principal place of business is address is Level 10, Tower One, 205 Queen Street, Auckland, will collect and hold the Client's personal information.
21.3 The Client has the right to see all personal information held about the Client by MS. If the information held about the Client is wrong, the Client has the right to have it corrected.
21.4 The personal information supplied by the Client is confidential to the Client and may be used by MS primarily to further the relationship between the Client and MS. This includes the provision of any products or services of MS and information about them which may be of interest to the Client. Such information may be in the form of client newsletters, brochures, offers of other services, or similar communications. If the Client does not wish to receive this information, they may contact MS at the above address.
21.5 The Client may wish to allow the Client's legal and financial advisers to have access to information relating to the Client's investment. MS maintains security over investor records but will provide information to those persons nominated by the Client.
21.6 The Client will take all reasonable steps to obtain and communicate to MS all information, and deliver or cause to be delivered to MS all documents with respect to dealing and trading activities which are requested by a person having a right to request such information or documents. The Client authorizes MS to pass on all information, and deliver or cause to be delivered all documents, to the person so requesting.
21.7 The Client authorizes MS to provide details or all or any information relating to the Client's dealing in Contracts or trading in Securities to:
(a) the Financial Markets Authority and/or the Compliance Reporter in whatever form and at whatever times as may be requested by the Securities Commission and/or the Compliance Reporter to carry out its regulatory functions;
(b) any other governmental or regulatory authority, upon request;
(c) any Futures Exchange, Securities Exchange, Clearing House or Third Party on request;
(d) any of MS's Associated Entities as may be required;
(e) anyone to whom MS may assign its rights and responsibilities under this Agreement, whether in whole or in part; and
(f) anyone that MS sees fit to protect MS's interests, or for purposes directly connected to those set out in this Agreement, or as required by law.
22. UNSOLICITED ELECTRONIC MESSAGES ACT 2007 (NZ)
22.1 The Unsolicited Electronic Messages Act 2007 (NZ) requires MS to obtain the Client's permission to send "commercial" messages to the Client. By executing this Agreement, the Client hereby authorizes MS to communicate to the Client from time to time, when appropriate, by email.
23. TRADING SYSTEM DISCLOSURE STATEMENT
23.1 MS shall not be liable to the Client for any losses, expenses, costs, damages or liabilities due to any failure, hindrance or delay in performing its obligations under this Agreement where such failure, hindrance or delay arises directly or indirectly from circumstances beyond its reasonable control. Such events shall include but not be limited to technical difficulties such as telecommunication failures or disruptions, non-availability of any Trading System due to downtime, unforeseen maintenance, civil unrest, terrorism, war, natural disasters, strikes, lock-outs, fire or such at MS's premises (notwithstanding that MS is a party to the conflict and including cases where only part of MS's functions are affected by such events), or other cause beyond MS's control, or from any resultant failure to execute, process or report deals and trades or similar errors whether or not the error might be due to factors under MS's control.
23.2 Dealing, trading or routing Orders through electronic systems varies widely among the different Trading Systems. The Client should consult the Rules and regulations of the relevant Futures Exchange or Securities Exchange offering the Trading System and/or listing the Contract or Security or routing the Order to understand, among other things, the Trading System's Order matching procedure, opening and closing procedures and prices, policies on error deals and trades, dealing or trading limitations or requirements, qualifications for access, grounds for termination and limitations on the types of Orders that may be entered into the Trading System. Each of these matters may present different risk factors with respect to dealing or trading on or using a particular Trading System. Each Trading System may also present risks related to system access, varying response times, and security. In the case of internet based Trading Systems, there may be additional types of risks related to system access, varying response times and security, as well as risks related to service providers and the receipt and monitoring of electronic mail. All the risks identified in this clause are outside MS's control and therefore MS cannot be held liable for any loss suffered by the Client as a direct or indirect consequence thereof.
23.3 Without limiting clause 5.2, dealing or trading through a Trading System exposes the Client to risks associated with system or component failure. Since MS does not control signal power, its reception or routing via the internet, configuration of Client equipment or reliability of its connection, MS cannot be responsible for communication failures, distortions or delays when the Client trades on-line over the internet.
23.4 In the event of system or component failure, it is possible that, for a certain time period, the Client may not be able to deal or trade, including opening new positions, closing out existing positions, entering new Orders, executing existing Orders, or modifying or canceling Orders that were previously entered. System or component failure may also result in loss of Orders or Order priority.
23.5 The Client is solely responsible for safeguarding passwords to ensure that third parties do not gain access to the Client's Trading System. The Client shall be responsible for all information sent to MS using the Client's name, password or any other personal identification means implemented to identify the Client. The Client will be liable to MS for any Contracts or Securities executed by means of the Client's password, even if such use may be unauthorized or wrongful.
23.6 The Client understands the risks associated with the transmission of information by use of the internet and hereby agrees to indemnify and hold harmless MS from and against all losses, claims, expenses, costs, damages, fines or liabilities whatsoever suffered by MS (including, without limitation, legal costs and expenses) arising out of the use of any Trading System by the Client, its employees, agents or contractors, or any act or omission of the Client, its employees, agents or contractors.
23.7 Some Contracts or Securities offered on a Trading System may be dealt or traded electronically and through open outcry during the same dealing or trading hours. The Client should review the Rules and regulations of the relevant Futures Exchange or Securities Exchange offering the system and/or listing the Contracts or Securities to determine how Orders that do not designate a particular process will be executed.
23.8 Futures Exchanges or Securities Exchanges offering a Trading System and/or listing the Contract or Security may have adopted rules to limit their liability, the liability of their members and/or registered brokers and software and communication system vendors and the amount of damages the Client may collect for system failure and delays. Different Futures Exchanges and Securities Exchanges have varying limitation of liability provisions. In order to understand these liability limitations, the Client should consult the Rules and regulations of the relevant Futures Exchange(s) and/or Securities Exchange(s), which are available upon request from MS.
23.9 MS shall not be liable to the Client for any loss the Client might suffer due to errors in quotes which are the result of typing errors committed by MS or MS's erroneous perception of information entered into the Trading System by the Client. MS is entitled to make the necessary corrections in the Client's account according to market value of the asset in question at the time when the error occurred.
23.10 MS may offer real-time tradable prices to the Client. Due to delayed transmission between the Client and MS, the price offered by MS may have changed before an Order from the Client is received by MS. If automatic Order execution is offered to the Client, MS shall be entitled to change the price on which the Client's Order is executed to the market value at the time at which the Order from the Client was received.
23.11 Regardless of the fact that the Trading System might confirm that a Order is executed immediately, when the Client transmits instructions via the Trading System, the confirmation forwarded by MS or made available to the Client on the Trading System constitutes MS's confirmation of a Contract or Securities deal or trade;
23.12 Any instruction sent via the Trading System by the Client shall only be deemed to have been received and shall only then constitute a valid instruction and/or binding contract between MS and the Client when such instruction has been recorded as executed by MS and confirmed by MS to the Client, and the mere transmission of an instruction by the Client shall not constitute a binding contract between MS and the Client.
23.13 Any particular Trading System may be available in several versions, which may be differentiated in various aspects including, but not limited to, the level of security applied and the products and services available. MS shall not be liable to the Client for any loss, expense, cost or liability suffered or incurred by the Client due to the Client using a version different from MS's standard version with all available updates installed.
23.14 If the Client has access to any Trading System for any Futures Exchange or Securities Exchange, the Client acknowledges that:
(a) the data accessed via that Trading System is not the property of MS and remains the property of the relevant Futures Exchange or Securities Exchange; and
(b) the Client is forbidden to publicly display, redistribute or re-transmit the data in any way without having entered into a written agreement with the relevant Futures Exchange or Securities Exchange expressly permitting such activity.
24.1 MS is entitled to amend, modify or waive all or any of the terms of this Agreement. In such a case, MS shall effect such amendment, modification or waiver by providing the Client with written notice of the same.
25.1 The Client may not assign any of their rights or obligations under this Agreement to any other person. MS may assign its rights or obligations to any of its Associated Entities or to any person or entity who may acquire the whole or any part of MS's business or assets.
26. BINDING EFFECT
26.1 This Agreement shall be continuous and shall cover individually and collectively all and any of the Client's Client Accounts at any time open or reopened with MS, irrespective of any change or changes at any time in MS's personnel or constitution for any cause whatsoever and shall enure to MS's benefit (including to the benefit of any company which may result from MS's amalgamation or reconstruction) and similarly shall enure to the benefit of any purchaser of MS's business.
26.2 This Agreement shall be binding on the Client's personal representatives, successors in title and permitted assigns.
26.3 Notwithstanding the fact that MS is not obliged to allow the Client to transact before entering into the Agreement, it is intended that the Client rights and obligations in respect of any transactions effected prior to the date of this Agreement shall be governed by the terms of this Agreement.
27. FAX AND TELEPHONE INDEMNITY
27.1 In consideration of MS agreeing to accept facsimile and telephone instructions from the Client in relation to any arrangements with MS, the Client agrees that:
(a) MS may accept telephone or facsimile instructions but is not obliged to accept them;
(b) MS will not be liable to the Client or any other party if the instructions are unauthorized, forged or fraudulently given. To the maximum extent permitted by law, the Client will indemnify MS for its losses in acting on such instructions;
(c) the Client will maintain appropriate internal controls for its business so as to ensure that unauthorized, forged or fraudulent instructions are not given to MS. The Client undertakes to do prompt reconciliations of bank statements and to check confirmations and other notices from MS against its internal records. The client will promptly notify MS of any irregularities uncovered by these reconciliations and checks.
28.1 Except in the case of instructions regarding dealing in Contracts or trading in Securities or placing Orders or the making of Margin calls by MS, each notice or other communication to be given or made by a party under this Agreement shall be in writing and shall be deemed to have been duly served if given:
(a) by mail, three (3) Business Days after it is posted where the party's last known address is in New Zealand, and ten (10) Business Days after it is posted by airmail where the party's last known address is outside New Zealand;
(b) by hand, at the time it is left at the party's last known place of residence or business;
(c) by facsimile transmission, at the end of transmission to the party's last known facsimile number or such earlier time if acknowledged by the receiving party;
(d) by email, at the time the email is sent if sent by MS, or at the time the email is actually received, if sent by the Client; or
(e) by posting on a Trading System approved by MS, at the time of posting.
29.1 Client Details and Accessibility: Dealing in Contracts and trading in Securities is acutely time-sensitive and it is the Client's responsibility to ensure the Client is accessible at all times during market opening hours. The Client therefore agrees to notify MS in writing within two (2) Business Days of any change in the personal details that the Client has previously provided to MS. Where the Client has open positions in Contracts or Securities, they must provide MS with telephone or email details that they can be contacted on 24 hours a day in accordance with clause 9.8 of part B of this Section 2.
29.2 Waiver: No indulgence or concession granted by MS, and no omission or delay in exercising any of MS's rights, powers or privileges under this Agreement, shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power or privilege.
29.3 Severability: If any provision of this Agreement shall be held to be void, invalid or unenforceable, the same shall be deemed to be deleted or modified to the extent necessary to cure such voidness, invalidity or unenforceability and all other provisions of this Agreement shall remain in full force and effect. To the extent any provision of this Agreement is incapable of subsisting in conjunction with any relevant provision of Futures Industry Law, any other relevant law or the Rules (such provisions being hereafter referred to as "Relevant Provisions)", the Relevant Provisions shall prevail over and modify or supersede the inconsistent provision of this Agreement and this Agreement shall, with such provisions so modified or superseded, continue in full force and effect.
29.4 Amendment for change in Rules: The terms of this Agreement will be deemed to be amended as necessary to reflect any amendments to the Rules. Where MS considers, acting reasonably, that any such amendment will materially affect any Client, MS will advise the Client of the relevant amendment as soon as reasonably practicable but will not be liable for any failure to notify the Client of any such amendment.
29.5 Remedies: The rights and remedies herein are cumulative and not exclusive of any rights or remedies provided by law.
29.6 Force Majeure: MS shall not be in breach of this Agreement and shall not be liable or have responsibility of any kind for any loss or damage incurred by the Client as a result of any total or partial failure, interruption or delay in the performance of MS's duties and/or obligations under this Agreement occasioned by any act of God, fire, war, civil commotion, labour dispute, act of government, state, governmental or supranational body or authority, or any Futures Exchange or Securities Exchange and/or Clearing House, inability to communicate with market makers for whatever reason, failure of any Trading System, any other breakdown or failure of transmission in communication facilities of whatever nature, between MS and the Client or any other Third Party, or any other reason (whether or not similar in kind to any of the above) beyond MS's reasonable control.
29.7 Time: Time is of the essence in connection with all of the Client's obligations to make any payment or to provide any security to MS hereunder.
30. ENTIRE AGREEMENT
30.1 This Agreement constitutes the entire agreement between MS and the Client and supersedes any prior agreement relating to the subject matter of this Agreement or any prior declaration or statement either party may have made. This Agreement will become effective on the date that it is received and accepted by both parties.
31. EXCLUSIVE JURISDICTION
31.1 The parties to this Agreement agree for MS's exclusive benefit that the courts of New Zealand are to have exclusive jurisdiction to determine any disputes which may arise out of or in connection with this Agreement. Nothing contained in this clause shall limit MS's right to take proceedings against the Client in any other court of competent jurisdiction.
32. GOVERNING LAW
32.1 The provisions of this Agreement shall be governed by New Zealand law.
Part B: Exchange Traded Contracts/Off-Exchange Contracts
Part B of this Section of this Agreement outlines the terms and conditions upon which MS will deal with the Client in relation to Exchange Traded Contracts and Off-Exchange Contracts, providing financial market information, the acceptance of Client Money and ancillary services.
1. AUTHORISATION TO DEAL ON OR OFF EXCHANGE
1.1 MS has advised the Client and it has been agreed that the dealing of Contracts on the Client's account will either be through an Exchange or Off-Exchange at MS's discretion, unless and until specific written instructions to deal in Contracts through an Exchange or Off-Exchange, as the case may be, are given by the Client and acknowledged by MS.
2. SEGREGATED CLIENT FUNDS AND PROPERTY
2.1 All funds received from the Client shall be held in a bank account in accordance with the Regulations which broadly provide that:
(a) the Client Money in the bank account is not available to meet the debts or liabilities of MS;
(b) the relevant bank at which the account is maintained is not entitled to exercise any right of set-off or counterclaim against Client Money in the account in respect of any money owed to the bank by MS, and such bank is required to give an acknowledgment to MS to that effect;
(c) if MS establishes a bank account outside New Zealand which declines to give the acknowledgment referred to in clause 2.1(b), MS may pay Client Money into that bank account in accordance with the acknowledgment provided by the Client in Appendix II. The Client understands and acknowledges that the Client Money shall not have the protection provided under the Regulations in relation to the bank account;
(d) in order to deal or effect transactions for the Client, MS may, at its sole discretion, deposit the Client Money and property with an intermediate broker, Clearing House, Futures Exchange or bank in New Zealand in accordance with Regulations subject to the same protection in clause 2.1(b);
(e) in case of transactions effected for the Client, if the relevant Client has provided the acknowledgment referred to in clause 2.1(c), the Client's Money and property may be deposited with an overseas intermediate broker, Clearing House, Futures Exchange or bank in accordance with the Regulations.
2.2 Clients' money will be combined with the moneys of other clients of MS and deposited in the segregated client bank account.
(a) All moneys credited to the client segregated bank account maintained by MS may be used by MS to meet the default of any MS client.
(b) The segregation of clients' money and property does not protect that money and property from the risk of loss.
(c) MS will transfer the Client's money to the segregated client bank account at a fixed time each day. In the unlikely event that MS goes bankrupt before the Client's money is transferred, the Client will rank with other unsecured creditors in the liquidation of MS's assets.
2.3 The Client agrees that, subject only to MS exercising reasonable due diligence in accordance with industry standards, MS shall have no responsibility or liability for any loss to the Client occasioned or caused by the acts, omission, insolvency or other default of any intermediate broker, Clearing House, Futures Exchange or bank holding Client Money and/or property in New Zealand or outside New Zealand in accordance with this Agreement.
2.4 Unless otherwise agreed in writing, the Client acknowledges that MS is entitled to any interest on money and property of the Client deposited with MS and segregated and invested by MS.
2.5 The Client acknowledges that any benefit or right obtained by MS upon registration of a Contract with the Clearing House for a Futures Exchange as a result of the assumption of liability or a guarantee by that Clearing House, or any other legal result, is personal to MS and the benefit of that benefit, right or legal result does not pass to the Client.
2.6 (a) From time to time, MS may become entitled to amounts held in a Client bank account as a result of Contracts between MS and its clients ("Surplus Funds");
(b) to the extent that Surplus Funds are not withdrawn by MS from the Client bank account at the time they are calculated in accordance with the underlying Contract ("Valuation Point"), the unpaid balance Surplus Funds are deemed not to be immediately due and payable until the next Valuation Point, and only to the extent that the Surplus Funds form part of any amounts due to MS under the recalculation of Surplus Funds at that Valuation Point; and
(c) nothing in this clause 2.6 affects MS's rights under clauses 3 and 7 to 10 of this Part B of Section 2 (including its right to demand immediate repayment as therein provided and exercise all rights of set-off, foreclosure, liquidation or other remedies to enforce or collect payment thereof).
3. RIGHT TO RETAIN THE CLIENT'S FUNDS
3.1 MS shall be entitled at any time to retain or make deductions from and set-off amounts or credit balances which MS owes to the Client (including, without limitation, any Margin or the proceeds of any sale or closing-out transaction) in order to meet any liabilities which the Client may have incurred to MS or which MS may have incurred on the Client's behalf under this Agreement including, for example:
(a) sums to be paid in settlement of transactions or Margin calls;
(b) settlement of fees or commissions charged by MS, Third Parties or any relevant Futures Exchange and Clearing House or any other amounts or any liabilities or costs incurred when exercising rights or any other provision of this Agreement;
(c) any interest payable to MS under clause 13.2(e) of the General Terms and Conditions; and
(d) payments to MS pursuant to any indemnity.
3.2 The Client agrees that any obligation or liabilities owed to an Associated Entity and accepted by the Client or arising in relation to transactions executed by an Associated Entity under this Agreement shall be enforceable by MS on its behalf.
4.DEALING INSTRUCTIONS AND COMMUNICATIONS-CONTRACTS
4.1 If the Client does not provide MS with notice of its intention to exercise an option or another Contract which requires an instruction from the Client at the time stipulated by MS, MS may treat the option or Contract as abandoned by the Client. If a Contract can be prolonged on expiry, MS may at its entire discretion choose to prolong or to close such Contract. Where the Client is dealing in Exchange Traded Contracts and where the relevant Futures Exchange provides for automatic exercise of in-the-money options, MS will ensure that this feature is enabled. In this case, Clients that want to abandon such a Contract will be required to contact MS before the automatic exercise takes effect.
5. ACCOUNTING FOR TRANSACTIONS AND CLIENT REPORTING
5.1 After reporting the execution of a transaction, MS will send the Client a written confirmation. This will normally be issued within twenty-four (24) hours of the transaction, unless otherwise agreed. This confirmation will also include details of any profits and losses which will be credited to or debited from the Client's account and any relevant settlement and delivery details. Such confirmation may be handled through MS's approved Trading System or by email. If confirmation is by email, the Client is obliged to provide MS with an email address for this purpose.
5.2 Unless otherwise agreed, MS will send the Client an open position and a monthly statement of every account which the Client has with MS.
5.3 Any confirmation or statement of account or any report issued by MS in respect of any transaction or other matter shall be conclusive and binding on the Client, unless objection in writing is received by MS within two Business Days of the actual or deemed delivery date. However, occasionally (whether due to human or technical errors), discrepancies may occur in MS's confirmations/statements/reports. MS shall advise the Client of such errors and/or discrepancies as soon as practical, and thereafter, the Client will be bound by the relevant corrected confirmation/ statement/report.
6. FINAL SETTLEMENT OF CONTRACTS
6.1 In respect of open Contracts, the Client will promptly take all actions necessary either:
(a) to close out or otherwise liquidate such Contracts by giving proper instructions in good time to enable MS to carry out those instructions in accordance with their terms and the requirements of the Contract and of any relevant Futures Exchange, Clearing House or Third Party; or
(b) to enable MS to effect due exercise, settlement and/or delivery of such Contracts as they fall due in accordance with the requirements of the Contract and of any relevant Futures Exchange, Clearing House or Third Party including but not limited to making any appropriate payment or delivering any underlying asset to MS in good time for MS to complete due settlement and delivery.
6.2 If neither instruction, nor payment, nor documents are received, or any of the same are incomplete, incorrect or otherwise inadequate, MS may, without notice, close out or otherwise liquidate the relevant Contracts or make or receive delivery in respect thereof on MS's behalf or take such other action upon such terms and by such methods as MS in its absolute discretion shall think appropriate.
6.3 Profits arising from the granting, closing out, liquidation, settlement or exercise of Contracts or from similar transactions will be credited to the Client's account. Any debit balance on the Client Account, or arising as a result of the liquidation of the Client Account, will be payable by the Client forthwith and on demand.
6.4 In the event that the Client is dealing a Contract that is not cash settled and calls for the physical delivery of a commodity or Security, the Client will make every endeavor to close out the Contract before the Notice Date (as stated in the relevant Off-Exchange Contract or in the specifications of the relevant Exchange Traded Contract), and where the Client fails to effect such close out by this time, all costs, expenses and liabilities will be borne by the Client.
7. LIQUIDATION OF CLIENT COLLATERAL
7.1 Where any Collateral is to be sold by MS, the sale may be made:
(a) either by public auction, private treaty or tender;
(b) for cash or on credit;
(c) in one lot or in parcels;
(d) with or without special conditions or stipulations as to title or time or mode of payment or purchase money or otherwise;
(e) with power to allow the whole or any part of the purchase money to be deferred (whether with or without any security);
(f) whether or not in conjunction with the sale of any property to any person; and (g) upon such other terms and conditions as MS may consider expedient.
7.2 MS is not liable for any loss occasioned by a sale of such Collateral.
8. SET OFF
8.1 MS may (without notice or demand):
(a) combine or consolidate any or all of the accounts (of whatever nature, maturity or wherever located) which the Client holds with MS or any of MS's Associated Entity(ies); and
(b) set-off or apply towards satisfaction of the Client's obligation under this Agreement:
(i) any sum standing to the credit of any one or more of those accounts; or
(ii) any proceeds of the sale of any Collateral; or
(iii) any amount otherwise owing to the Client.
9. MARGIN REQUIREMENTS
9.1 Before accepting instructions from the Client, MS will require the Client to place sufficient Collateral (of such amount and in such form as MS deems appropriate in its sole and unfettered discretion) with MS in respect to the positions to be opened on the Client Account.
9.2 MS may, in its sole and unfettered discretion, refuse any (and vice versa). Shortfalls in either or both positions will be met by a instruction from the Client until it is satisfied, in its sole and unfettered discretion, that sufficient Margin is or will be in place at the relevant time.
9.3 The Client's liability in respect of Margin calls is not limited to the amount of any Collateral, if any, deposited with MS.
9.4 Subject to clause 9.1, a Client's liability to pay an Initial Margin accrues at the time an Order is executed regardless of when a call is made. MS reserves the right to determine the amount of Initial Margin that it deems is necessary to protect itself from the personal obligation incurred by dealing in Contracts on behalf of the Client. The minimum will not be less than that required by the relevant Futures Exchange, Clearing House or regulatory requirements. MS, in its sole and unfettered discretion, has the right to raise or lower the Initial Margin requirements, which, once established, may apply to existing positions as well as new positions in the Contract affected by such change.
9.5 If, in respect of any Contracts bought or sold, the market price should change from the time of the initial acquisition or disposal, or from the previous day's closing price in respect of open positions held before that time, then MS will call upon the Client to pay additional cash as Variation Margin. Liability to pay a Variation Margin accrues at the time the Variation Margin comes into existence. The liability to pay a Variation Margin accrues whether or not a call is made and irrespective of the time the call is made. The amount of Variation Margin required shall be determined by MS, taking into account such factors as it deems appropriate in its sole and unfettered discretion, including the relevant Futures Exchange or regulatory requirements and market conditions. The Variation Margin per Contract will not exceed the full underlying value of any open Contracts on the Client Account.
9.6 The time by which the Client must pay Variation Margin or any amount called or provide security is of the essence. Variation Margin must be paid in cash and other security must be provided as soon as possible and not later than twenty-four (24) hours of the call for a Margin or the request for the lodgement of cover; or, where the Client is outside New Zealand, not later than forty-eight (48) hours after such call or request.
9.7 Notwithstanding the Client's payment of an Initial or Variation Margin call within the relevant period of time prescribed by clause 9.6, MS reserves the right to close one or more Contracts and/or liquidate, sell or otherwise deal with the Client's Collateral or other cover of the Client, in part or in whole, at MS's sole discretion. MS assumes no responsibility and liability towards the Client in this regard.
9.8 Whilst holding an open position in a Contract, the Client must provide MS with telephone contacts through which the Client may be called or contacted 24 hours a day in case MS needs to contact the Client to make a call for the lodgement of additional Margin.
9.9 The Client is responsible for maintaining appropriate arrangements with MS at all times for the communication of Margin calls. If MS is unable to contact the Client or the Client fails to meet any Margin call within the prescribed time period, MS reserves the right to close out any open positions or realize any Collateral or other property held on the Client's behalf.
9.10 MS shall not set-off the position of a Client in an Exchange Traded Contract with an opposing position of the Client in an Off-Exchange Contract (and vice versa) as each is subject to a different regulatory regime.
9.11 The Client agrees to maintain sufficient Margin to cover both open positions in Exchange Traded Contracts and Off-Exchange Traded Contracts, that is, to cover a short position in Exchange Traded Contracts and a long position in Off-Exchange Contracts (and vice versa). Shortfalls in either or both position will be met by a Margin call.
9.12 Due to its leverage nature, the potential losses on an open position may be substantial. Clients are required to monitor their margin level in order not to be "stopped out" when the margin falls below the stop out level (i.e. 20% or 50% depending on the agreement between MS and the client). For example, if a client enters into an open position with a value equivalent to US$100,000; he/she/they deposits US$10,000 into their Trading Account as collateral (assumed the leverage is 10 times). If the client has a stop out level of 20%, their position will be closed by MS when the equity falls below US$2,000 (20% of US$10,000).
Therefore, clients are advised to keep sufficient collateral in their Trading Accounts to cover their holdings. Otherwise, the positions in the Trading Account will be closed-out by MS when the margin level falls below the threshold percentage. However, given market volatility, MS does not guarantee that the position will be / can be closed out at the 20% level which may result in further margin loss being made for which the client will still be liable to pay to MS.
9.13 For the avoidance of any doubt, and without limiting clauses 9.3 to 9.6, the Client is responsible to pay in cash any deficit owing to MS after closure of any open Contracts and if the Client defaults in payment of such deficit, MS may realize any Collateral held by MS and apply the proceeds against that deficiency. To the extent that the Collateral is insufficient to meet the full amount of such deficit, the Client will be obliged to pay cash to MS to meet the shortfall.
10. CLIENT'S DEFAULT
10.1 The Client agrees that each of the following events will constitute an "Event of Default" namely:
(a) the Client fails to comply fully and immediately with any obligation under this Agreement (including any transaction governed by this Agreement) and including but not limited to the obligation arising pursuant to the settlement of any Contract and any failure to pay or provide security for amounts payable to MS; or
(b) at any time, due to market fluctuations or for any other reason, MS shall in its absolute discretion consider that MS hold insufficient Margin or determine that any Margin held by MS to protect one or more of the Client's Account(s) is inadequate regardless of current market quotations; or
(c) MS, acting in its absolute discretion, determines that there is or has been an adverse change in the creditworthiness of any party providing a guarantee and/or indemnity in respect of the Client's obligations under this Agreement; or
(d) the Client takes any action or procedure seeking or proposing liquidation, reorganization, an arrangement or composition, a freeze or moratorium, or other similar relief with respect to the Client or to the Client's debts under any bankruptcy, insolvency, regulatory, supervisory or similar law (including any corporate or other law with potential application to the Client, if insolvent), or seeking the appointment of a Trustee, receiver, liquidator, conservator, administrator, custodian, examiner or other similar official (each a "Custodian") of the Client or any part of the Client's assets; or take any corporate action to authorize any of the foregoing; and, in the case of a reorganization, arrangement or composition, MS do not consent to the proposals; or
(e) the Client dies, becomes of unsound mind, is unable to pay debts as they fall due or is bankrupt or insolvent, as defined under any bankruptcy or insolvency law applicable to the Client; or any of the Client's indebtedness is not paid on the due date and therefore becomes, or becomes capable at any time of being declared, bankrupt or insolvent, or is unable to pay debts due and payable under agreements or instruments evidencing such indebtedness before it would otherwise have been due and payable, or proceedings are commenced for any execution, any attachment or garnishment, or any distress against, or an encumbrancer takes possession of, the whole or any part of the Clients property, undertaking or assets (tangible and intangible);
(f) any representation or warranty made by the Client was, is, or has become or subsequently would if repeated at any time be incorrect or misleading in any material way with the result that loss or damage is, or is likely to be, suffered by MS; or
(g) in the absence of the Client making alternative arrangements, the Client is not contactable by MS within twenty-four (24) hours in order for MS to obtain instructions;
If an Event of Default occurs, MS may, without prejudice to any other rights it may have hereunder or otherwise, have the right and power (but not the obligation) to automatically terminate the Agreement such that the date of the occurrence of any Event of Default shall automatically constitute a Liquidation Date for the termination and liquidation of all transactions contemplated under this Agreement without the need for any notice by MS.
10.2 Upon the occurrence of a Liquidation Date:
(a) neither party shall be obliged to make any further payments or deliveries under any transactions governed by this Agreement which would, but for this clause, have fallen due for performance on or after the Liquidation Date and such obligations shall be satisfied by settlement (whether by payment, set-off or otherwise) of the Liquidation Amount (being the amount determined under clause 10.2(b));
(b) MS shall (on, or as soon as reasonably practicable after, the Liquidation Date) determine (discounting, if appropriate), in respect of each transaction MS's total cost, loss or, as the case may be, gain, in each case expressed in the Base Currency (and, if appropriate, including any loss of bargain, cost of funding or, without duplication, cost, loss or, as the case may be, gain as a result of the termination, liquidation, obtaining, performing or re-establishing of any hedge or related position), as a result of the termination, pursuant to this Agreement, of each payment or delivery which would otherwise have been required to be made under such transaction (assuming satisfaction of each applicable condition precedent and having due regard to, if appropriate, such market quotations published on, or official settlement prices set by, a relevant Futures Exchange or Clearing House as may be available on, or immediately preceding, the date of calculation); and MS shall treat each cost or loss, determined as above, as a positive amount and each gain by MS, so determined, as a negative amount and aggregate all of such amounts to produce a single, net positive or negative amount, denominated in the Base Currency (the Liquidation Amount).
10.3 If the Liquidation Amount is a positive amount, the Client shall pay it to MS and if it is a negative amount, MS shall pay it to the Client. MS shall notify the Client of the Liquidation Amount, and by which party it is payable, after the calculation of such amount.
10.4 The amount payable by one party to the other party pursuant to the provisions of clause 10.3, or any applicable laws or regulations, shall be paid in the Base Currency (converted as required by applicable law into any other currency, any costs of such conversion to be borne by the Client, and (if applicable) deducted from any payment to the Client) by the close of business on the Business Day following the completion of the termination and liquidation under this clause 10, or any laws or regulations having a similar effect.
10.5 For the purposes of any calculation hereunder, MS may convert amounts denominated in any other currency into the Base Currency at such rate prevailing at the time of the calculation, as MS shall reasonably select.
10.6 MS's rights under this clause 10 are in addition to, and not in limitation or exclusion of, any other rights which it may have under this Agreement or otherwise whether by agreement or operation of law. In particular and without prejudice to the provisions of this Agreement, MS is authorized and entitled, without notification to the Client and according to MS's judgment and in its absolute discretion to take such action as deemed necessary, expedient or desirable, to protect MS's own position, including without limitation, one or more of the following actions (whether in whole or in part) (and is irrevocably authorized by the Client to do the same):
(a) enter into one or more transactions to effect the close out of one or more open positions in accordance with the Rules of any relevant Futures Exchange or the terms and conditions of the Off-Exchange Contracts;
(b) perform, cancel or, if applicable, abandon any of the Client's open Contracts (including exercising any options in accordance with the Rules of the relevant Futures Exchange if they are Exchange Traded Contracts or the terms and conditions if they are Off-Exchange Contracts);
(c) borrow, buy, sell, mortgage, charge or otherwise dispose of any or all Collateral which the Client may have requested MS to enter into or hold with or for the Client, or other property of any type held or carried by MS for the Client (whether entered into or held as security for the Client's obligations to MS hereunder or otherwise) or purchase or borrow any or all Collateral;
(d) satisfy any obligation that the Client may have to MS, either directly or by way of guarantee or suretyship, out of any of the Client's Collateral in MS's custody or control;
(e) cancel any or all outstanding Orders or Contracts or any other commitments made with or for the Client; and
(f) exercise any other rights conferred by the Rules of the relevant Futures Exchange or the terms and conditions of the Off-Exchange Contract (whichever is applicable) or by this Agreement and perform any other obligations arising under the Rules of the relevant Futures Exchange or the terms and conditions of the Off-Exchange Contract (whichever is applicable) or under this Agreement;
(g) take any other steps (whether or not similar to the above) MS may consider to be necessary to meet any obligations which the Client has to comply with under this Agreement or otherwise to protect MS's position.
10.7 If and when MS takes any or all of the action described in clause 10.6 above, the Client must account to MS as if those actions were taken on the instruction of the Client and, without limitation, is liable for any deficiency and is entitled to any surplus which may result.
10.8 Any of the action described in clause 10.6 above may be taken:
(a) without any demand for a Margin, Variation Margin or any other Margin, Approved Securities, Collateral or other cover;
(b) even if the Margin, Variation Margin or any other Margin, Approved Securities, Collateral or other cover has been paid up or lodged within the relevant period of time prescribed in clause 9.6; and
(c) regardless of whether the relevant transactions which MS may have executed or arranged with or for the Client, are solely the Client's or held jointly with others.
10.9 In liquidating any long or short positions, MS may, at its sole discretion, sell or purchase in the same contract month or initiate new long or short positions in order to establish a spread or straddle which in its judgment is necessary or advisable to protect existing positions on the Client's account. Any sales or purchases hereunder may be made according to MS's judgment and at its sole discretion on any Futures Exchange or market where such business is usually transacted or at a public auction or private sale.
10.10 MS may:
(a) act on its own behalf as vendor or purchaser in any such transaction without incurring any liability of any kind to the Client and may buy or sell any property dealt with in accordance with the foregoing provisions free of any equity or right of redemption of the Client. A prior demand or call, or prior notice of the time or place of sale or purchase or other action shall not be considered a waiver of MS's right to sell or buy or take other action without demand or notice as herein provided. The Client shall at all times be liable for payment of any debit balance owing in the Client Account(s) and in the event that the proceeds of any action taken by MS under this clause or this Agreement are insufficient for the payment of all of the Client's liabilities due to MS, the Client shall promptly pay, upon demand, the deficit, together with interest thereon at the Default Rate and all costs of collection or enforcement or other action taken by MS hereunder (including reasonable legal fees of a solicitor) and all other amounts due hereunder; and
(b) take such other action as a reasonably prudent futures broker would take in the circumstances to protect the personal obligation incurred when facilitating acquisitions or disposals on the behalf of the Client.
Part C: Client Broking Services
Part C of this Section of this Agreement outlines the terms and conditions upon which MS will engage with the Client in relation to trading in Securities (other than Contracts; and securities offered by HK Noble Sky Treasure Securities Limited (HK NSTS)), providing financial market information, the acceptance of Client Money and ancillary services.
1. SERVICE STANDARD
1.1 MS undertakes to perform all services with reasonable care and skill.
1.2 Instructions and Orders from Clients to trade Securities shall be attended to by MS in the order in which they are received and entered into the Trading System.
1.3 If Orders are transferred into a pool account prior to the allocation of Securities, then Securities will be allocated on the average price of the applicable Orders.
2. BROKING SERVICES
2.1 Once a party has been accepted by MS as a Client, MS will open a Client Account. It is a term of this Agreement that the Client or their guarantor, as specified in the Client Information Statement, agrees to be personally liable for any actions undertaken by the Client or under the Client's direction in respect of trading through the Client Account and to guarantee payment of any moneys owing under the Client Account either to MS, NZX or any Recognized Securities Exchange.
3. WHEN MS BUYS SECURITIES ON THE CLIENT'SBEHALF
3.1 When MS buys Securities pursuant to the Client's instruction or Order, MS will send the Client a Contract Note no later than the Business Day following the purchase of those Securities. The Client agrees to pay MS all brokerage commission and fees charged by MS and all applicable fees, taxes and duties, and the purchase price of Securities that MS buys in fulfilling the Client's Order immediately upon the Client receiving MS's Contract Note and within 3 Business Days of the date of the Contract Note. Until MS receives the Client's payment, MS will hold those Securities for the Client as soon as they are transferred from the seller, but subject to all MS's rights at law, under any applicable rules of NZX, and under this or any Agreement with the Client.
3.2 In the case of Electronic Registered Holdings, the Client agrees to provide MS with its CSN at the time of the Order. If MS does not receive the Client's CSN at the time of the Order and the Client's payment within 3 Business Days of the date of the Contract Note, the Client agrees that MS may (at MS's option) either offset the amount owing against the credit balance on the Client's account (if any), or sell the Securities and offset the sale proceeds against the amount owing. The Client agrees to pay MS any brokerage fees on selling the Securities and (provided MS has acted with reasonable care and skill in selling the Securities) to indemnify MS for any losses which may occur as a result of selling the Securities where the sale proceeds are less than the original purchase price for the Securities.
3.3 If the Client is trading Securities on any Recognized Securities Exchange (in New Zealand or overseas) which has different requirements from the procedures described in clauses 3.1 and 3.2, the Client agrees to comply with those requirements when MS notifies them to the Client, and (provided MS has acted with reasonable care and skill) to indemnify MS for any losses which MS may occur if the Client fails to comply with them.
3.4 Where the Client asks MS to purchase on the Client's behalf any Securities which are quoted in foreign currency, and the Client asks MS to bill the Client in New Zealand dollars, the Client's request is irrevocable. The exchange rate will be as set by MS in its sole and unfettered discretion in good faith and MS will advise the Client, on the Contract Note or invoice, of the New Zealand dollar amount, which must be paid within 3 Business Days from the date of the Contract Note.
3.5 Securities that MS acquires to the Client's Order may either be registered into the Client's name or the name of a person nominated by the Client, or held on the Client's behalf by MS's custodian, by a custodian appointed by a Third Party on behalf of MS or by an overseas custodian that MS selects as bare Trustee for the Client. MS undertakes that any custodian used will not trade and each custodian's only activity will be to hold investments on behalf of clients. Where Securities are registered in the name of a custodian, a summary of Interest Withholding Tax, Dividends and Imputation Credits for the year ending 31 March will be forwarded to the Client as soon as practicable.
3.6 Where the Client fails to meet a Delivery Obligation, MS shall have the right to pass on, and the Client shall have the obligation to meet, any change or levy incurred by MS as a result of the Client's failure to make delivery within the time needed to enable MS to meet the time limits imposed by the Rules. Where the Client has failed to settle with MS, the parties shall have the rights and obligations imposed by the Rules regarding canceling the contract and mitigating any loss relating to that failure to settle. Any payment made to MS will be used to offset MS's brokerage and fees and then to any charges incurred in settling the contract, including debt recovery and finally to the settlement of the Securities. Any profit made by MS exercising such rights may be retained by MS for its own benefit and any loss incurred will be to the Client's account.
4. WHEN MS SELLS SECURITIES ON THE CLIENT'S BEHALF
4.1 When MS sells Securities to the Client's Order, MS will send the Client a Contract Note (and a Securities transfer form if applicable) no later than the Business Day following the sale of those Securities. Where the Client has sold Securities which are quoted in foreign currency and asked MS to pay them in New Zealand dollars, the amount which the Client will receive will be shown on the Contract Note. The exchange rate will be as set by MS in its sole and unfettered discretion in good faith.
4.2 MS will hold the Securities for the Client until payment is received from the buyer. Once received, MS will endeavor to pay the Client the sale price of the Securities as soon as possible (after deducting brokerage fees). Should MS hold the proceeds of sale for the Client, the moneys will be subject to all MS's rights at law, under any rules of NZX, and under this or any Agreement with the Client.
4.3 In the case of Electronic Registered Holdings, the Client agrees to provide MS with the Client's CSN and FASTER Identification Number at the time the instruction or Order is given (for information on FASTER Identification Numbers see clause 5 below).
4.4 If applicable, the Client agrees to send the relevant documents of title and the signed Securities transfer forms to MS so that MS will receive them within 3 Business Days of the date of the Contract Note.
4.5 For Securities traded on NZX, if MS does not receive the Client's CSN and FIN at the time of the Client's instruction or Order and completed documentation within 3 Business Days of the date of the Contract Note, NZX may buy in the Securities and impose penalties upon the Client. Alternatively, MS may repurchase the Securities. The Client agrees to meet any costs or fees imposed by any Recognised Securities Exchange and to indemnify MS against any costs (including brokerage fees) and losses MS may suffer as a result of the Client's failure to comply with any requirements of this Agreement.
4.6 If the Client instructs MS to sell or otherwise dispose of Securities, the Client agrees to pay to MS on demand all brokerage commission and fees charged by MS and all applicable fees, taxes and duties.
4.7 The Client acknowledges that the sale proceeds will be made payable to the registered Securities holder, in the event that the Client's name differs from that of the registered Securities holder.
4.8 For Securities listed on overseas exchanges, MS will require the relevant documents of title to the Securities where they exist and transfers (where necessary) before the sale Order is processed.
5. FASTER IDENTIFICATION NUMBER (FIN)
5.1 Where the Client provides MS with its FIN, MS or a Third Party duly appointed by MS will encrypt it as soon as reasonably practicable.
5.2 Unless MS is prevented from doing so by any lawful requirement, MS will delete any unencrypted FIN from any document on which it is recorded, such that the FIN is not legible.
5.3 Unless the Client instructs otherwise, the Client authorizes MS to hold the encrypted FIN and authorizes MS to pass the encrypted FIN on to any Third Party as required to effect an Order.
5.4 Where the Client instructs that MS is not authorized to hold or continue to hold the encrypted FIN, MS will delete it as soon as reasonably practicable.
5.5 MS will hold the encrypted FIN on MS's computer system. MS may use the FIN to:
(a) transfer any of the Client's Securities, when applicable, and in accordance with this Agreement; and
(b) verify that the Client's FIN is correctly matched to the Client's CSN.
5.6 The Client acknowledges that, in the event that a person obtains the FIN that the Client provides to MS prior to encryption or decodes the encrypted FIN that MS holds, there is the risk that the person may:
(a) use the Client's FIN to fraudulently transfer any of the Client's Securities to another person; or
(b) disclose the FIN to another person who then does the above.
5.7 The Client acknowledges that, if MS holds the Client's encrypted FIN and the Client's CSN, MS will have unlimited ability to transfer Securities to other persons.
5.8 MS undertakes that it will at all times use reasonable endeavors to protect the Client's FIN from unauthorized use and unauthorized access.
6. SHORT SELLING-MARGIN COVER
6.1 Before MS transacts a Short Sale for a Client, MS must first obtain from the Client Margin Cover of such amount as is agreed but, failing agreement, of no less than 15% of the contract price of the Short Sale (Margin Cover).
6.2 Any Margin Cover must be provided in Collateral satisfactory to MS in its sole and unfettered discretion as valued in clause 6.5 below or any other valuation as approved by NZX.
6.3 If there is a rise in the market price of a Security which has been Short Sold and the Short Sale position is still open, the Client may be required to provide additional Margin Cover equal to a minimum of 10% of the amount of the increase in market price for that Security, provided that MS shall not be obliged to see such additional margin cover until the rise exceeds 10% of the contract price of the Securities Short Sold.
6.4 In addition to clause 6.3 above, additional Margin Cover is required from the Client in respect of any Short Sale Orders in the following circumstances:
(a) If the Securities proposed or provided as Margin Cover are suspended, delisted, placed in receivership or liquidation or the Issuer of those Securities has its operations in any way restricted, either by NZX or the Issuer of that Security or by any legal process (suspended), to the extent that the original Margin Cover has been reduced by the deduction of the suspended Securities; or
(b) If there is a fall in the market price of any Securities provided as Margin Cover, to the extent required to make up the shortfall.
6.5 Securities provided as Margin Cover shall be deemed to have a value at the Current Market Price less the risk based reductions as set out in Rule 15.6 of the NZX Participant Rules applying to the Current Assets of a Market Participant Requiring Liquid Capital for capital adequacy purposes.
6.6 If the Client fails to provide any Margin Cover requested at any time by MS, by the beginning of the next Normal Trading Session after the demand is made, MS may proceed to close out the Short Sale at the Client's risk and expense. If a profit results, MS shall account to the Client accordingly.
7. DISCLOSURE OF INTERESTS
7.1 MS and certain persons associated with it are defined by the Participant Rules to be Prescribed Persons. The Participant Rules require MS to disclose to the Client that, from time to time, Prescribed Persons may have a threshold interest in Securities which MS recommends to the Client or which the Client may buy or sell.
7.2 A threshold interest is a relevant interest as defined in section 5 of the Securities Markets Act 1988 (NZ) which has a value in excess of the lesser of NZD$50,000 or 1% (such value to be determined at the time the Securities were acquired) of the Securities on issue and listed on a market provided by NZX or a Recognized Securities Exchange in any Issuer, Security or other matters which are the subject of a possible transaction for acquisition and disposal of Securities.
7.3 The Client should be aware that Prescribed Persons may have a threshold interest in a Security for which the Client may have an interest in.
7.4 MS may be acting as principal in Securities for which the Client may or may not have an interest in.
7.5 MS may be acting as Agent for the buyer and seller in a transaction and may be earning income from both parties to that transaction.
8. TRUSTEE LIMITATION OF LIABILITY
8.1 If the Client is an independent Trustee, MS agrees that in exercising its powers under this Agreement the Client will have no personal liability under this Agreement and MS will not have any recourse to assets that are not Trust assets. However, this limitation on MS's rights will not apply if:
(a) the Client is in wilful or negligent breach of the Trust or has acted negligently or dishonestly;
(b) the Client lacks the power or authority to sign this Agreement in its capacity as Trustee;
(c) any representations or acknowledgments the Client has made are untrue or incorrect; or
(d) the Client has signed this Agreement in its personal capacity as well as its Trustee capacity;
and in such case the Client will have full personal liability under this Agreement and MS may have recourse to the Client's personal assets as well as to the Trust assets.
8.2 A Client is an "independent Trustee" for the purposes of clause 8.1 above if the Client has signed this Agreement as Trustee and neither the Client, nor any spouse (de facto or otherwise), civil union partner, child or grandchild:
(a) is a beneficiary (discretionary or otherwise); or
(b) has a power of appointment of additional beneficiaries, under the Trust.
9. DEATH OF CLIENT
9.1 In the event of the Client's death, MS may act on the instructions of any person claiming to intend to apply, or to have applied, for Probate or Letters of Administration in relation to money or Securities held on the Client's behalf. This clause 9 is binding on the Client's personal representatives and successors in title. The Client (through its estate) agrees to hold MS harmless for acting on any such instruction.
9.2 In the event of the Client's death or that of a joint holder, MS wil act in accordance with any agreement between the joint holders that is communicated to MS and either:
(a) transfer all joint security holdings into the name of the surviving joint holder, in which case this Agreement will remain valid for the surviving security holder; or
(b) transfer the security holding of the deceased person to that person's estate.
10. TRADING, DELIVERY AND SETTLEMENT
10.1 MS acts as an lntroducing Broker for HK Noble Sky Treasure Securities Limited (HK NSTS), an HKEx Trading and Clearing Firm which holds a Type 1 licence issued by the Securities and Futures Commission of Hong Kong. As such the Client is required to separately sign a HK Noble Sky Treasure Securities Limited (HK NSTS) Client Services Agreement to trade securities offered by HK NSTS. ln the HK NSTS agreement HK NSTS agrees to provide to the Client certain trading, execution and clearing services and will carry out all settlement and delivery obligations for all trades effected by HK NSTS for the Client. You should note the following in relation to HK NSTS:
(a) HK NSTS 's contact details are as follows:
HK Noble Sky Treasure Securities Limited
E,28/F, Legend Tower
7 Shing Yip,ST.
Kwun Tong,Kowloon,Hong Kong
CLIENT ACKNOWLEDGEMENT & RISK DISCLOSURE STATEMENT
The Client acknowledges that:
1. The Client has appointed MS as the Client's agent for the purpose of dealing in Futures Contracts (as that term is defined in the Securities Markets Act 1988) in accordance with the terms of this Client Acknowledgment and Risk Disclosure Statement and the terms of the Client Services Agreement.
2. MS is regulated in the conduct of its Contracts dealings by the Financial Markets Authority.
RISK DISCLOSURE STATEMENT
The risk of loss in dealing in Futures Contracts can be substantial. The Client should therefore carefully consider whether that kind of dealing is appropriate for them in the light of their financial circumstances. In deciding whether or not they will become involved in that kind of dealing, the Client should be aware of the following matters:
(a) the Client could sustain a total loss of the initial margin funds that they deposit with MS to establish or maintain a position in a Futures and Options Exchange or Off-Exchange;
(b) if the market price moves against the Client's position, the Client may be required, at short notice, to deposit additional margin funds with MS in order to maintain the position. Those additional funds may be substantial. If the Client fails to provide those additional funds within the required time, their position may be liquidated at a loss and in that event the Client will be liable for any shortfall in the Client Account resulting from that failure;
(c) under certain conditions, it could become difficult or impossible for the Client to liquidate a position (this can, for example, happen when there is a significant change in prices over a short period);
(d) the placing of contingent orders (such as a "stop-loss" order) may not always limit losses to the amounts that the Client may want. Conditions may make it impossible to execute such orders;
(e) a "spread" position is not necessarily less risky than simply "long" or "short" position;
(f) the high degree of leverage that is obtainable in dealing in Futures Contracts, because of small margin requirements, can work against the Client as well as for them. The use of leverage can lead to large losses as well as large gains;
(g) if the Client proposes to acquire or dispose of options, the maximum loss in buying an option is the amount of the premium, but the risks in selling an option are the same as in other Futures Contracts; and
(h) It should be noted that MS may in certain cases act as the Counter-party to an Off-Exchange Contract with the Client. In many cases, it may be difficult or impossible to liquidate an existing position, to assess the value, to determine a fair price or to assess the exposure to risk. For these reasons, Off-Exchange Contracts may involve increased risks as compared to Exchange Traded Contracts. Off-Exchange Contracts may be less regulated or subject to a separate regulatory regime. However, as stated in clause 2.1 of Part B of Section 2 of this Agreement, all funds received from a Client shall be held in a bank account in accordance with the Regulations. Before the Client undertakes Off-Exchange Contracts, the Client should familiarize themselves with any applicable rules and attendant risks.
This statement does not disclose all of the risks and other significant aspects involved in dealing Futures Contracts on a Futures and Options Exchange or Off-Exchange. The Client should therefore study dealing in Futures Contracts carefully before becoming involved in it.
ACKNOWLEDGMENT BY CLIENT IN RESPECT OFOVERSEAS PERSONS
(To be given pursuant to the Futures Industry (Client Funds) Regulations 1990)
The Client hereby acknowledges in accordance with regulations 4(2), 10(2), and 15(2) of the Futures Industry (Client Funds) Regulations 1990, that-
1. MS has advised the Client that, in the course of MS's dealings in Contracts, MS will or may from time to time, on behalf of the Client, -
a. Pay client money to MS's client bank account:
b. Credit client money to MS's client funds account:
c. Deposit client property in safe custody, -
with the following persons outside New Zealand:
in the case of Exchange Traded Contracts, the Clearing House and any Third Party Clearing Participants of the relevant Futures Exchange.
2. MS has also advised the Client –
a. That none of those persons has given the acknowledgments required by regulations 4(1), 10(1), and 15(1) of the Regulations; and
b. That, as a consequence, the money or property may not have the protection afforded by regulation 20 of the Regulations.
3. Notwithstanding that advice, MS is hereby authorized –
a. To pay money to the client bank account maintained by MS with any of those persons:
b. To credit money to the Client Funds account maintained by MS with any of those persons:
c. To deposit any of the Client's property in safe custody with any of those persons; -
until such time as this authority is expressly revoked by the Client by notice in writing to MS.