TERMS AND CONDITIONS
IMPORTANT: The following terms and conditions apply to individuals who are transacting privately, as a sole proprietor of a business, as a trustee of a trust or as a partner of a partnership. If you are representing a company, you will need to enter into a Corporate Client Agreement.
You should not indicate your agreement to these terms and conditions until you have read them fully, are satisfied that you understand them and are happy with what they say.
1 This Agreement
1.1 Transacting as an Individual - These terms and conditions apply to private clients ("you") who are dealing with NZForex Limited ("us" or "we") as an individual/s through any of our Websites.
1.2 Ownership of Funds - You must be the owner of the money you are intending to transfer.
1.3 Appointment of Agent - If you would like us to receive instructions from somebody else acting on your behalf, you must sign an Agent Appointment Form.
1.4 Structure of this Agreement - This Agreement is a master agreement which applies to all Transactions you subsequently enter into with us. The specific details of each individual Transaction will be agreed separately at such time as you book those Transactions; they will constitute separate agreements in their own right but will incorporate these terms and conditions.
1.5 Other Documents You Should Read - You acknowledge that you have been provided with copies of the following documents:
(i) Product Statement.
(iii) Website Use Agreement.
(iv) Regulatory Statement.
2 Our Service
2.1 Foreign Exchange Services - We provide money transmission services by way of Spot Contracts (to be settled within 2 days) and Forward Contracts (to be settled between 2 days and 12 months).
2.2 No Margin or Speculative Trading - We do not offer any form of margin or speculative trading facilities. When you enter into a Transaction, you must deliver to us the full amount of the funds you are transferring on or before the agreed date.
2.3 No Exchange Rate Set-Off - We will not agree to enter into any kind of set-off arrangement that would allow you to pay us only the amount of any loss that might be realised on settlement of the Transaction, or us to pay you any profit, as the result of exchange rate movements.
2.4 No Financial Advice - We will not take into account your personal current or future financial situation or investment needs when we enter into a Transaction with you. We will not provide any recommendation or give any opinion in relation to a Transaction. We may provide you with information in relation to the mechanics of the Transaction you are proposing to enter into. You must obtain your own financial advice and make your own assessment as to whether our service is appropriate for your requirements. You must select the type and timing of each Transaction you enter into yourself.
3 Your Instructions
3.1 Username and Password - We will issue you with a username and password that will enable you to provide us with Instructions either online, by telephone or by email. It is your responsibility to ensure the security of your username and password. We will rely on any Instructions received pursuant to the use of the username and password without checking the identity of the user and you will at all times be bound by those Instructions.
3.2 Agent - If you appoint somebody else to act on your behalf ("Agent") either by completing an Agent Appointment Form or otherwise in writing, we will act in accordance with all Instructions received from your Agent, and you will be bound by those Instructions, until you provide us with 48 hours written notice of your intention to withdraw your authority for that Agent.
3.3 No Obligation to Accept Instructions or Process Transactions - While we will always endeavour to comply with your Instructions as quickly as possible, there may be circumstances in which we are unable to do so. Therefore, we always reserve the right to refuse to accept your Instructions and to do so without giving you any reasons and without incurring any liability to you for any resultant loss or damages incurred by you or any other party.
4.1 Transaction Binding - If you wish to enter into a Transaction, you may do so by giving us Instructions online, by telephone or by email. The Transaction will be legally binding on you when we receive your Instructions in accordance with this paragraph 4 or paragraph 5.
4.2 Online Auto Confirm Transaction - If you enter into an Auto-Confirm Transaction online, the Transaction will be legally binding on you as soon as we receive your electronic Instructions. We will provide you with confirmation of the Transaction Details on the screen at the time you book the Transaction, but we will not provide you with any subsequent confirmation of any kind unless you request it.
4.3 Online Booking Confirmation - If you book a Transaction online that is not an Auto-Confirm Transaction, we will attempt to contact you by telephone within 15 minutes of your online booking to confirm the Transaction details. The Transaction will be legally binding on you at the conclusion of the telephone call. If we cannot contact you by telephone on the number you have given to us within 15 minutes, we reserve the right to cancel the booking and not enter into the Transaction.
4.4 Email Booking - It you book a Transaction by email, the Transaction will be binding on you when we process your email. You acknowledge that, if you choose to book a transaction by email, it may not be processed immediately. When we process your Instructions, we will send you an email headed "Deal Confirmation". The Deal Confirmation constitutes an error correction mechanism only; if you do not contact us within 24 hours of receipt of the Deal Confirmation, the Transaction details will be deemed to be correct.
4.5 Telephone Booking - If you book a Transaction by telephone, the Transaction will be legally binding at the conclusion of the telephone call. We will send you an email headed "Deal Confirmation". The Deal Confirmation constitutes an error correction mechanism only. If there is any discrepancy between the Deal Confirmation and the details of the Transaction that have already been agreed in the telephone conversation, you must contact us within 24 hours of receipt of the Deal Confirmation, failing which the Transaction details in the Deal Confirmation will be deemed to be correct. In the event of any dispute, the transcript of our telephone conversation may be used as evidence as to the terms of the agreement that was entered into.
4.6 Cancellation - Once a Transaction has become legally binding, you may not cancel the Transaction in any circumstances. You may only take action to correct any of the Transaction details set out in the Deal Confirmation if the Deal Confirmation does not reflect the transaction details that have already been agreed.
4.7 Out-of-Market Quotes - If we quote you a Rate that is clearly a mistake on our part ("Out-of-Market Quote") as the result of a technical or human error, it is not binding on us. You must notify us as soon as the mistake comes to your attention and we will requote the Rate as soon as possible.
4.8 Prompt Performance by You - You acknowledge that exchange rates can fluctuate rapidly, so the Rate we quote you is contingent on the prompt performance of your obligations. We reserve the right to requote the Rate if you do not provide us with requested information or funds on time.
5 Forward Transactions
5.1 Forward Contract Details - A Forward Contract will become legally binding as and from the time that the Transaction details are orally agreed between us in the telephone call. After the telephone call, we will send you a document entitled Deal Confirmation. The Deal Confirmation constitutes an error correction mechanism only. If there is any discrepancy between the Deal Confirmation and the details of the Transaction that have already been agreed in the telephone conversation, you must contact us within 24 hours of receipt of the Deal Confirmation, failing which the Transaction details in the Deal Confirmation will be deemed to be correct. In the event of any dispute, the transcript of our telephone conversation may be used as evidence as to the terms of the agreement that was entered into.
5.2 Advance Payment - We reserve the right to request that you pay one or more Advance Payments in relation to all Forward Contracts. We may request an Advance Payment both at the time you book the Forward Transaction and at any time prior to the Maturity Date. You acknowledge that the amount of any Advance Payments requested will be determined by us in our discretion. You acknowledge that any Advance Payment is a part-payment of the full amount of the Forward Contract, that you do not retain any interest in, or have any right to be repaid, any Advance Payment, and that in accordance with paragraph 6.8, we will not pay you any interest on any Advance Payment.
5.3 Failure to Pay an Advance Payment - If we have asked you to pay an Advance Payment, you must pay the amount we have requested on the date we have nominated. If you do not do so, we reserve the right to Close Out the Forward Contract in accordance with paragraph 9.
5.4 Change to the Maturity Date - You may ask us to bring forward the Maturity Date or to extend the Maturity Date in relation to the whole or only part of your Forward Contract. You acknowledge that we may agree to such a request entirely at our discretion. If we agree, you acknowledge that the Rate will be adjusted to account for the timing of the new settlement date.
5.5 Payment of Full Amount on Settlement - You must transmit to our account the full amount of the Forward Contract, less any Advance Payment already paid, together with any service fees that we have requested, on or before the Maturity Date.
6 Payment to Us
6.1 Spot Contract Payments - You must initiate payment into our account of the full amount of a Spot Contract on the day the Transaction becomes legally binding in accordance with paragraph 4. If we have not received the funds within 2 business days, we reserve the right to Close Out the Transaction in accordance with paragraph 9.
6.2 Forward Contract Payments - You must ensure that you pay into our account the full amount of all Forward Contracts on or before the Maturity Date. If we have not received the funds by the Maturity Date (or any agreed change to the maturity date), we reserve the right to Close Out the Transaction in accordance with paragraph 9.
6.3 No Cash or Cheques - You acknowledge that we do not accept cash or cheques. You agree to make all payments to our account electronically and you acknowledge that we will transmit your funds by electronic means only.
6.4 Beneficiary Account - You must provide us with full details of the account to which you are sending your money ("Beneficiary Account"), including the full name and address of the account holder and the full name and address of the bank at which the account is held, on or before the date that we nominate. If you fail to do so, we reserve the right to Close Out the Transaction in accordance with paragraph 9.
6.5 Beneficiary Account Number - We will rely solely on the account number you give us for your Beneficiary Account and will not check to ensure that the name provided by you accords with the account number you have given us.
6.6 Full Amount - All payments must be received by us in cleared funds and for the full amount being transferred, including any transaction fees that may be payable and any service fees that have been requested by us, before we will credit your Beneficiary Account. In the event that we agree to make a payment for you without having received the full amount, you acknowledge that we are not waiving our right to ask you for the full amount after the Transaction has been processed.
6.7 No Funds Held On Trust - You acknowledge and agree that we do not hold any payment by you (including any Advance Payment) or any foreign currency funds purchased in connection with a Transaction on trust and will not put any such funds into a separate bank account.
6.8 No Interest Paid - You acknowledge that we will not pay to you any interest on any payment by you (including any Advance Payment) or any foreign currency funds purchased in connection with a Transaction or otherwise.
6.9 Funds Held by Us without Instructions - In circumstances where you ask us to hold foreign currency funds purchased in connection with a Transaction pending your further instructions, you should provide us with your Instructions as soon as possible; if you do not do so within 3 months, we will transfer the foreign currency funds into your Beneficiary Account without interest.
7 Misdirected Funds
7.1 Your Mistake - If your funds are sent to the wrong account as the result of a mistake made by you, and we have acted in accordance with your Instructions, we will be under no obligation either to recover the funds or to resend the funds to the correct Beneficiary Account. You will need to book a new Transaction.
7.2 Our Mistake - If your funds are sent to the wrong account as the result of a mistake made by us, we will take urgent action at our own expense to recover those funds, provided that you take immediate action to assist us to recover any such funds if the mistaken beneficiary is related to you or associated with you in some way.
8.1 Legally Binding - You may enter into an Order online, by telephone or by email. Subject to your right to cancel the Order in accordance with paragraph 8.2, the Order will become binding as and from the time that your Instructions are received by us. After we receive your Instructions, we will send you an Order Confirmation. The Order Confirmation constitutes an error correction mechanism only; if you do not contact us immediately on receipt of the Order Confirmation, the Transaction details will be deemed to be correct.
8.2 Cancellation of Orders by Telephone Only - You may cancel an Order at any time before the Target Rate is reached by giving us notice by telephone. You may not cancel an Order after the Target Rate has been reached, whether or not we have notified you that the Target Rate has been reached. When the Target Rate is triggered, you are legally bound by the Transaction.
8.3 Payment - We will notify you by telephone or email as soon as possible on the Business Day or on the next Business Day after the Target Rate has been reached. As soon as you receive our notification, you must take action to ensure that the funds reach our account by the Delivery Date. If we do not receive the funds in time, we reserve our right to Close Out the Transaction in accordance with paragraph 9.
9 Closing Out
9.1 Closing Out Transactions - We may refuse to perform a Transaction, or we may Close Out a particular Transaction or all current Transactions that you have with us, without notice to you:
(i) if you fail to make any payment when it is due, including the payment of any Advance Payment that has been requested by us;
(ii) if you fail to provide any material information we have requested or any information you have given us is or becomes, in our opinion, materially inaccurate or misleading;
(iii) in the event of your death or loss of mental capacity;
(iv) in the event that bankruptcy proceedings are commenced against you;
(v) if the performance of our obligations under this Agreement become illegal;
(vi) if a serious dispute has arisen between us; or
(vii) if you breach an important term of this Agreement or of any Transaction.
9.2 Consequences of Closing Out - When we Close Out any or all of the Transactions that you have entered into, we buy back the currency that we have purchased in connection with the Transaction at prevailing market rates chosen by us in good faith. If the value of the currency you have asked us to exchange has strengthened, a loss will be incurred on the Transaction and you will be liable to pay us the amount of that loss, together with any expenses, premiums, commissions or other fees incurred by us.
9.3 No Payment of Profit - We will not pay you any profit arising from Closing Out a Transaction in any circumstances.
9.4 Payment of Loss - You acknowledge that the amount of any loss realised on the Closing Out of a Transaction is a debt payable by you. You agree that we may immediately deduct the total amount of any loss (together with any expenses, premiums, commissions or other fees) from any refund owed to you upon Closing Out a Transaction (for example, the amount of any Advance Payment). If the amount we are seeking to recover exceeds the amount of any refund owed to you, you agree to pay the balance within 7 days of being notified by us of the total amount due.
9.5 Interest - You agree that we may charge you interest on any sum that remains payable to us after we Close Out any or all of your Transactions at a rate of 2% per annum over the official cash rate published from time to time by the Reserve Bank of New Zealand (or of such monetary authority as may replace it). Interest will accrue and will be calculated daily and be compounded monthly from the date payment was due until the date full payment is made by you.
9.6 Default Notification - You must notify us immediately if you become aware of any event referred to in paragraph 9.1 above.
9.7 Notice of Monies Due - If we Close Out a Transaction, we will send you a written statement explaining the amount of any sums that may be payable to us, the amount of any refund owed to you and the amount of any deductions made by us from that refund.
10 Anti-Money Laundering and Counter-Terrorism Financing ("AML/CTF")
10.1 AML/CTF Compliance - You undertake that you will not knowingly do anything to put us in breach of the Financial Transactions Reporting Act 1996, the Terrorism Suppression Act 2002, the Criminal Proceeds (Recovery) Act 2009, or the Anti-Money Laundering and Countering the Financing of Terrorism Act 2009 and other subordinate instruments (“AML/CTF Laws”). You undertake to notify us if you become aware of anything that would put us in breach of AML/CTF Laws.
10.2 Provision of Information - If requested, you undertake to provide additional information and assistance and comply with all reasonable requests to facilitate our compliance with AML/CTF Laws in New Zealand or an equivalent overseas jurisdiction.
10.3 No Grounds for Suspicion - You undertake that you are not aware and have no reason to suspect that:
(i) the money you are transferring is derived from or related to money laundering, terrorism financing or similar activities (“Illegal Activities”);
(ii) the money you are transferring will be used to finance, or in connection with, Illegal activities;.
(iii) the money you are transferring is or may be relevant to the investigation or prosecution of any person for a money laundering offence;
(iv) the money you are transferring is or may be relevant to the enforcement of the Criminal Proceeds (Recovery) Act 2009 or the Terrorism Suppression Act 2002.
10.4 Consent to Collection of Information by Us - We are subject to AML/CTF Laws. You consent to us disclosing in connection with AML/CTF Laws any of your Personal Information (as defined in the Privacy Act 1993) we may have.
10.5 Freezing or Blocking Transfer of Funds - In certain circumstances, we may be obliged to freeze or block an account where it is used in connection with Illegal Activities or suspected Illegal Activities. Freezing or blocking can arise as a result of the account monitoring that is required by AML/CTF Laws. If this occurs, we are not liable to you for any consequences or losses whatsoever and you agree to indemnify us if we are found liable to a third party in connection with the freezing or blocking of your account
10.6 Right to Refuse to Provide Our Service - We retain the right, at any time, to refuse, in our sole discretion, to provide our service.
11.1 Disputes Policy - If you have a problem with our service, you should initially bring your complaint to our attention so that we can deal with it in accordance with our internal disputes policy. Our complaints officer will attempt to resolve the dispute to your satisfaction as quickly as possible.
11.2 Dispute Resolution Scheme - If the dispute cannot be resolved under our internal disputes policy, you must then formally submit the dispute to the approved dispute resolution scheme of which we are a member for the purposes of the Financial Service Providers (Registration and Dispute Resolution) Act2008 for determination in accordance with the rules of that scheme and the Financial Service Providers (Registration and Dispute Resolution) Act 2008.
11.2 Legal Action - Nothing in this paragraph prevents either of us from approaching a court for an urgent injunction and nothing prevents us from taking immediate legal action to recover any amounts that you may owe us as the result of Closing Out a Transaction/s under paragraph 9.
12 Limitation of Liability
12.1 No Liability for Delays - You acknowledge that delays in the transmission and receipt of payments may occur. In particular, you acknowledge that we operate an online dealing platform that could be subject to technical, or other, problems, the nature and duration of which may be beyond our control. Our service also involves the use of intermediaries who are outside our control. Accordingly, while we do everything reasonably in our power to ensure the timely transmission of funds, we cannot guarantee that transfers of funds will always be made on time and, subject to paragraph 12.4, cannot accept any liability to you for any loss suffered by you as a result of any delays in the transmission of funds.
12.2 Liability Limited - Subject to paragraph 12.4, we do not in any circumstances assume liability to you in excess of the amount of money you have actually paid to us in relation to any particular Transaction. Subject to paragraph 12.4, we will not be liable to you for any form of consequential damages or loss that you may suffer as a result of:
(i) delays in the transfer of your funds; or
(ii) our refusal at any time to transfer your funds.
Without in any way limiting the effect of this paragraph or any other paragraph of this agreement, "consequential damages" shall be taken to include damages arising from:
(i) loss of business;
(ii) loss of opportunity to realise a gain as a result of foreign exchange fluctuations;
(iii) loss of any other opportunity; or
(iv) loss of interest on funds.
For the avoidance of doubt and without limiting any other provision of this Agreement:
(a) if your funds are sent to the wrong account or otherwise fail to reach your Beneficiary Account as the result of a mistake made by us, we will credit your Beneficiary Account in the full amount of the funds you expect to receive (subject always to your obligations under paragraph 7.2), but that shall be the full extent of our liability to you;
(b) if we Close Out or refuse to process one or more of your Transactions for any reason, we shall, after deducting any loss in accordance with paragraph 9.4 if applicable, refund to you any previous payments made by you in connection with the relevant Transactions by way of Advance Payment or otherwise, but that shall be the full extent of our liability to you.
12.3 If you are a consumer (as defined in the Consumer Guarantees Act 1993 (“CGA”)) and are acquiring or holding yourself out as acquiring the services for a business purpose, the CGA will not apply.
12.4 Subject to paragraph 12.3, nothing in this Agreement will affect any rights you or any other person may have under the CGA.
13 Warranties and Indemnities
13.1 Your Warranties - You agree that the following statements are true and accurate, and you acknowledge that we may refuse to process, or Close Out, a Transaction if we find at any stage that they are not true and accurate:
(i) you are over the age of 18;
(ii) you are the beneficial owner of the money you are seeking to transfer;
(iii) you are not acting on behalf of another person;
(iv) you will inform us if you are acting as:
(a) a sole proprietor of a business;
(b) a trustee of a trust; or
(c) a partner of a partnership;
(v) if you are acting as a trustee of a trust, you are properly authorised to enter into this Agreement and any Transactions in accordance with the terms of the relevant trust deed;
(vi) you have a valid commercial or personal reason for entering into each Transaction and will not enter into any Transaction for speculative purposes; and
(vii) in making your decision to enter into a Transaction, you will not rely on any information that may be provided from time to time by us on our website or by our employees or consultants.
13.2 Your Indemnity - You agree to indemnify us for any costs, expenses or fees we may incur as a result of your failure to perform your obligations under this Agreement, whether they arise under paragraph 9 or in some other way. This includes any legal costs that we may incur in order to enforce our rights or recover any amounts you owe us. You also agree to indemnify us for any fees, costs, duties and taxes charged by third parties, including fees charged by your beneficiary bank, whether or not those fees or charges were notified to you in advance. You also agree to indemnify us and our officers, employees and agents in respect of any loss, damage, cost or expense which we or they may sustain or incur arising from or related to any claim brought by a third party arising from a breach by you of this Agreement.
14.2 Collection of your Personal Information - You acknowledge that, in order to provide our service to you, we must obtain certain information about you of a personal nature and you agree to provide any personal information that we request. You acknowledge that if you refuse or fail to provide any requested information, we may not be able to process any Transaction/s for you.
14.3 Contact Us - If you have any questions about the collection and use of your personal information, you may contact our Compliance Manager on 0800 161 868 or at firstname.lastname@example.org.
14.4 Access to your Personal Information - Under the Privacy Act 1993, you have rights of access to and correction of personal information that NZForex holds. This can be done by contacting our Compliance Manager.
14.5 Purpose of Collection - We collect information about you in order to provide our service to you, to satisfy our regulatory obligations under the AML/CTF legislation referred to in paragraph 10 and to assess your credit worthiness for the purposes referred to in paragraph 3.
14.6 Organisations who may receive your Information - We may provide your personal information to our intermediary bankers and to any government regulatory bodies that normally require it or may request it. We may also provide your information to any partners, agents or intermediaries who are a necessary part of the provision of our services.
14.7 International Intermediaries - You acknowledge and agree that we use international intermediaries to process Transactions on your behalf and that your personal information may be sent to those overseas intermediaries in order to complete the Transaction.
14.9 Use of Your Information - You agree that we may use any information we collect about you for the purposes of complying with our obligations under any AML/CTF Laws and for any other purpose directly related to the provision of our services.
14.10 Information Correct and Up-to-Date - You must ensure that all information you give to us is accurate and up-to-date at all times. You must tell us if any of your personal details change as soon as practicable.
14.11 Protection of Information - We collect and store all information electronically and take all reasonable steps to protect information from unauthorised access, but we cannot accept liability for unauthorised access or use of your personal information.
14.12 Retention of Information - Any information collected by us, including telephone recordings or transcripts, may be kept or destroyed in accordance with our information retention policy.
14.13 Recording Phone Conversations - You consent to the electronic recording of all telephone conversations that take place between us without an automatic warning tone or warning message being given and you agree that we may use the recordings as evidence in any dispute or anticipated dispute between us.
15.1 Notices - Where notice in writing is required under this Agreement, it may be sent by fax, post or email. Proof of posting will be proof of receipt; in the case of facsimile or email on the day of dispatch, in the case of delivery by post 48 hours from the date of posting. Documents shall be sent to the last known postal address, email address or fax number you have given to us. If they change, you must notify us as soon as possible.
15.2 Modification of this Agreement - We may alter some of the terms of this Agreement by posting the new terms on our website. This will not affect any rights or obligations you already have, but you will be bound by the new terms when you enter into subsequent Transactions.
15.3 Governing Law - This Agreement shall be interpreted in accordance with the laws of New Zealand and you submit to the non-exclusive jurisdiction of the courts of New Zealand.
Advance Payment means a payment of part of the sum that is due us on the Maturity Date.
Agent Appointment Form means a form that we will give you to enable you to appoint somebody else to transact with us on your behalf.
Auto-Confirm Transaction means a Transaction that has been booked online and has been processed by us automatically with no telephone call or other communication being entered into.
Close Out means reversing a Transaction in the circumstances set out in paragraph 9 or otherwise pursuant to this Agreement.
Forward Contract means a foreign exchange contract under which we agree to exchange money at an agreed exchange rate and at an agreed time which is between 48 hours and 12 months from the time of the contract being entered into.
Instructions means a request made by you to enter into a Transaction.
Maturity Date means, in relation to a Forward Contract, the date on which the currency exchange is to be made by the Company and includes any agreed variation to the original date, being either an earlier or a later date.
NZForex means NZForex Limited (CN: 2514293) whose registered office is C/o Macquarie NZ Limited, Level 17, Lumley Centre, 88 Shortland Street, Auckland, New Zealand.
Order means a limit order pursuant to which you may instruct us enter into a Transaction only when a Target Rate has been reached.
Order Confirmation means the notification we send you confirming the details of the Order you have entered into with us.
Rate means the foreign currency exchange rate that we quote you for a Transaction.
Spot Contract means a foreign exchange contract under which we agree to exchange money at an agreed rate within 48 hours of the contract being entered into.
Target Rate means the rate at which an Order is triggered.
Transaction means a Spot Contract, a Forward Contract or an Order, and shall be taken to refer to a series of transactions pursuant to standing instructions given by you.
Websites means any websites owned by us.
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