1. The Service

1.1 The Client warrants and acknowledges that:-

• (a) all Trades are for non-speculative purposes only and that the Client has full capacity to instruct HiFX to perform the service or place an Order;
• (b) the Client is acting as principal only and not as agent for any third party whose identity has not been disclosed to HiFX at the time of the Service or Order;
• (c) the Client will take physical delivery on the Value Date of the purchased currency after payment to HiFX of the full amount of the Sale Currency for each Trade as stipulated by HiFX;
• (d) the Client has received from HiFX as at execution of these Terms and Conditions an up to date:- (i) Financial Services Guide; and (ii) Product Disclosure Statement; and (iii) where the circumstances require, in respect of personal financial advice, a Statement of Advice.
• (e) where HiFX has provided personal financial advice in accordance with a Statement of Advice, the Client shall immediately notify HiFX in writing in the event of any change in the relevant personal circumstances of the Client.
• (f) once a Trade Confirmation has been given to the client by HiFX it cannot be altered or cancelled without the prior written consent of a HiFX director
• 1.2 To the extent HiFX does not provide personal financial advice to the Client, then subject to the Corporations Act:-
• (a) the Client relies solely on his/her own skill and judgment in determining whether the Services or any incidental services acquired from HiFX are reasonably fit for the Client’s purposes;
• (b) the Client does not place any reliance on HiFX’s opinion of the merits or otherwise of any currency transaction, taxation matters or comments made concerning any investment products or markets or other matters whatsoever.

2. Instructions

2.1 The Client may instruct HiFX to perform the service orally or in writing. The Service will be subject to the Conditions. HiFX will not be obliged to perform the Service and may refuse to do so without giving any reason. HiFX will have no liability to the Client for any resultant loss or damages suffered by the Client or any other party as a result of HiFX’s refusal. No Agreement will come into force until the Trade Confirmation. Each Trade, if accepted by HiFX, will constitute a separate severable Agreement.

2.2 Notwithstanding clause 2.1, HiFX reserves the right to require written confirmation of any Trade, Order or instruction by the Client.

2.3 The Client acknowledges that HiFX may record and store all telephone conversations with or without an automatic warning tone. HiFX reserves the right to produce and store a transcript of the recorded telephone conversation and to use either the transcript or the recording of the telephone conversation for the purposes of verifying the details of an Order or Trade or to resolve any disputes between the Client and HiFX in respect of the Service.

2.4 The Client will be solely responsible for ensuring that the details the Client supplies to HiFX to enable HiFX to perform the Service, including without limitation, the Client’s contact details, the details of any Order or Trade and the Account, are true and accurate, nor will the Client withhold or omit any information that would render those details false or inaccurate. The Client agrees to notify HiFX immediately the Client becomes aware of any error or change in the details the Client has supplied to HiFX.

2.5 The Client warrants that the Client will, on request, supply HiFX with all the information and documentation necessary to enable HiFX to comply with relevant legislation pertinent to the Service. 2.6 The Client will supply to HiFX, on request, a specimen signature. A signature substantially resembling the specimen will be sufficient for HiFX to authenticate an instruction as being from the Client.

3. Financial provisions

3.1 In the event of a Spot Trade, the Client shall pay into the Nominated Account on such date or dates as HiFX might direct, but no later than the Business Day immediately preceding the Value Date, the amount specified by HiFX as full payment for the Trade.

3.2 In the event of a Forward Trade the Client shall immediately pay a Margin of 10% of the full amount of the Sale Currency, or such other percentage as HiFX may specify, into the Nominated Account in cleared funds. The Client shall pay any outstanding balance of the Sale Currency into the Nominated Account not later than one Business Day before the Value Date of the particular Forward Trade.

3.3 In the event of a Same Day Trade the Client shall pay the Sale Currency into the Nominated Account by no later than the relevant time stipulated by HiFX.

3.4 All payments due from the Client to HiFX pursuant to the Conditions shall be made without set-off, counterclaim or deduction whatsoever.

3.5 HiFX will make any payments due to the Client under the Conditions and any Agreement in full unless required by law to deduct sums in respect of any taxation liabilities.

3.6 The parties acknowledge that the banks through which payment of the Trades is to be effected, have specified times of cut off for the receipt and dispatch of electronic payments. HiFX accepts no responsibility for and shall have no liability in respect of any delay in onward payment attributable to the late arrival of funds or instruction of payment relative to the cut off times of the designated bank.

3.7 HiFX reserves the right to make a Margin Call to re-establish the Margin to the original percentage level agreed for the Trade, if the Margin subsequently falls below the applicable threshold for that Trade as set out below as a result of an adverse foreign exchange movement:

• (a) in the event of an initial Margin of 10% falling to or below 5%
• (b) in the event of an initial Margin of 15% falling to or below 10%
• (c) in the of event an initial Margin of 20% falling to or below 15%

3.8 In the event of a Margin Call being made the Client shall pay all the money required pursuant to the Margin Call in cleared funds into the Nominated Account within twenty four hours of HiFX first communicating the Margin Call to the Client. The Client’s failure to do so shall be a fundamental breach of the Conditions and shall entitle HiFX, without prejudice to any other remedy available and without incurring any liability to the Client or to any other party immediately and without notice to the Client or any other party to terminate the Trade.

3.9 The Client warrants that the Margin or such other funds to be provided as security for the Client’s obligations hereunder will be beneficially owned by the Client and will not be subject to any charge, lien or other encumbrance, nor will the Client create any charge, lien or other encumbrance over any funds so provided.

3.10 The Margin will vest automatically in HiFX in any of the following circumstances:

• (a) on the Value Date;
• (b) if the Client is in breach of any of the Conditions;
• (c) in the circumstances set out in clause 4.1(c). 

3.11 All funds provided by the Client under the Conditions (whether as security or otherwise) may be appropriated by HiFX in the event that HiFX incurs any liability, is exposed to increased foreign exchange risk (as HiFX in its discretion may decide) in respect of any Trade or in the event that the Client is unable to pay its debts or fails to comply with or breaches the Conditions.

3.12 HiFX reserves the right to charge the Client interest in respect of the late payment of any sum due under the Conditions or any Agreement from the due date until payment, at a rate equivalent to five percent in excess of the rate of interest for the time being fixed under section 100 of the Civil Procedure Act 2005 (NSW).

4. Duration, termination

4.1 HiFX shall have the right to close out all or part of any Trade without notice to the Client of the Client’s liability if any of the following events occur:

• (a) The Client materially breaches any of the Conditions or fails to comply with the Client’s obligations to HiFX in respect of a Trade or is materially in breach of any statute or regulation relative to the Service or any Agreement; or
• (b) It becomes or may become unlawful for HiFX to maintain or give effect to all or any of the obligations under the Conditions or otherwise to carry on its business, or if HiFX is requested to close out a Trade (or any part thereof) by any regulatory authority whether or not the request is legally binding, or if HiFX in its absolute discretion considers it desirable or necessary to do so for its own protection; or
• (c) The Client becomes unable to pay his/her debts as they become due or makes any assignment, arrangement or composition with or for the benefit of the Client’s creditors or if the Client ceases or threatens to cease to carry on all or a part of his/her business or commits an “act of bankruptcy” (as defined in the Bankruptcy Act 1966 (Cth)), becomes insolvent, has a bankruptcy petition issued against him/her or stops or threatens to stop any payment or payments due under the Conditions or any Agreement.

4.2 If the Client becomes aware of the occurrence of any event referred to in clause 4.1, the Client shall give HiFX notice of such event immediately.

5. Limitation of Liability

5.1 Subject always to the Corporations Act and the Trade Practices Act 1974 (Cth), this clause sets out HiFX’s entire liability to the Client for any losses, costs (including legal costs), damages, expenses, taxes, charges or any other liability whatsoever (“Claim”).

5.2 The limitation and exclusion of liability is set on the basis that the Client is aware of the volatile nature of foreign exchange.

5.3 HiFX will not be liable to the Client for any Claim which arises as a result of currency fluctuation between the Trade Confirmation and the Value Date, or as a result of the client’s non-compliance with Clause 2.4. Version: AU 4.4 (December 2006) private client currency services Terms and Conditions

5.4 HiFX shall not be liable to the Client for any Claim arising out of the Conditions, the Service, or any Trade or Agreement by reason of any cause of action whether in contract, tort or otherwise, save for direct losses caused by the negligence of HiFX in the performance of a Trade.

5.5 Without prejudice to clause 5.4 and subject to the provisions of this clause 5, HiFX’s total aggregate liability to the Client for any Claim will not exceed the lesser of:- (a) the total amount paid by the Client to HiFX in respect of the Trade giving rise to the Claim; or (b) A$250,000.

5.6 Notwithstanding anything in the Conditions or in any Agreement, HiFX shall not be liable for any loss of profits, goodwill, anticipated savings, loss caused by the failure or delay of any third party in the transmission, provision or delivery of the Service or any incidental services, or any special, indirect, incidental or consequential loss whether resulting from currency speculation, from purposes associated with the Client’s business or from any other cause whatsoever, regardless of the form of action (including loss or damage suffered by the Client as a result of an action brought by a third party) and even if such loss was reasonably foreseeable or HiFX was advised as to the possibility thereof.

5.7 The Client hereby indemnifies and will keep HiFX indemnified against any and all liabilities incurred by HiFX in the proper performance of the Service and the enforcement of its rights hereunder and, in particular, without prejudice to the generality of the foregoing, in respect of all amounts necessary to compensate HiFX for any and all liabilities sustained or incurred by HiFX (including but not limited to HiFX’s loss of profits) as a result of or in connection with:

• (a) Any default in payment by the Client of any sum under the Conditions when due;
• (b) Any breach by the Client of clauses 1.1 and 1.2;
• (c) Any action or steps of whatever nature or kind taken by HiFX to carry out or give effect to instructions or orders, whether written or oral, received from or purporting to be from the Authorised Persons referred to in clause 8;
• (d) HiFX’s exercising its right under clauses 4.1(a) or 4.1(c) to close out all or any part of any Trade and, in such event, HiFX shall have the right, as an alternative to its right to seek an indemnity from the Client, to set-off against any moneys held by HiFX on behalf of the Client, any amounts owed by the Client to HiFX in respect of the Service or any Trade or Agreement.

5.8 HiFX shall not be liable to the Client for any delay or non-performance of its obligations under the Conditions or any Agreement arising from any cause or causes beyond its reasonable control including, without limitation, any of the following: Act of God, governmental act, war, fire, flood, explosion, civil commotion, failure of computer equipment or communications systems or industrial dispute of a third party.

6. General

6.1 Nothing in the Conditions or any Agreement is intended to confer any benefit on any third party (whether referred to herein by name, class, description or otherwise) or any right to enforce any provision of the Conditions or of any Agreement.

6.2 The parties are independent contractors. Neither the Conditions nor any Agreement shall establish or be deemed to establish any relationship of partnership, joint venture, employment, franchise or agency between the parties.

6.3 The provisions of Clause 5 shall survive termination of any instruction by the Client, completion of any Trade or termination of the Service or of any Agreement.

6.4 The Conditions and any Agreements shall constitute the entire agreement and understanding of the parties and supersede all oral communications and prior writing relating to them; provided that neither party shall benefit from excluding liability for fraudulent misrepresentation or fraud.

6.5 HiFX may amend the Conditions by notice in writing to the Client at any time and such amendment shall be binding with the agreement of the Client from the date of such notice. Any such amendment shall not be retrospective or affect any rights or obligations that may already exist in respect of any instructions.

6.6 Should any provisions of the Conditions be deemed unenforceable or illegal, the remaining provisions and the remainder of the provision in question will nevertheless continue in full force and effect.

6.7 The Client may not assign or otherwise transfer the benefit of any Agreement without the express written consent of HiFX. HiFX may without notice to the Client assign its rights and obligations under the Conditions to any third party and the Client hereby consents without reservation to any such assignment or novation.

6.8 Any failure by HiFX to exercise, and any delay, forbearance or indulgence by HiFX in exercising, any right, power or remedy under this Agreement shall not operate as a waiver of that right, power or remedy or preclude its exercise at any subsequent time.

6.9 In the event of any of the provisions of the Conditions being in conflict with other documentation produced pursuant to an Agreement then the Conditions shall prevail.

6.10 Notwithstanding that any provision of the Conditions or any Agreement may prove to be illegal or unenforceable pursuant to any statute or rule of law or for any other reason that provision is deemed omitted without affecting the legality of the remaining provisions which shall continue in full force and effect.

6.11 The Client agrees that any disclosure statement or other document required to be given to the Client by law, including any product disclosure statement or financial services guide or supplementary product disclosure statement or supplementary financial services guide, may be given to the Client by being placed in either case on an identified website of HiFX.

7. Governing Law

7.1 The Conditions and any Agreement shall be governed by and interpreted according to the laws of New South Wales and the Client consents and submits to the jurisdiction of the Courts of New South Wales.

8. Authorised Persons

8.1 The Authorised Persons named on the Application Form supplied with these conditions are authorised by the Client to give instructions for the Services to be acquired from HiFX on behalf of the Client.

A. Interpretation

In these terms and conditions, unless the context otherwise requires 

• “Account” means the bank account notified by the Client to HiFX into which any sums due from HiFX to the Client pursuant to any Trade will be paid.
• “Agreement” means any agreement between HiFX and the Client incorporating the Conditions.
• “Business Day” means a day on which the trading banks are open for business in Sydney excluding a Saturday, Sunday or public holiday.
• “Client” means the person who, as Client, duly completes, signs, and delivers to HiFX the Application Form supplied with these conditions.
• “Conditions” means these terms and conditions.
• “Contract Note” means HiFX’s written document setting out the details of the Trade which will be sent to the Client following the Trade Confirmation.
• “Corporations Act” means the Corporations Act 2001 (Cth) and all subsequent amendments to it.
• “Financial Services Guide” means the financial services guide of HiFX as required to be provided to the Client in accordance with Part 7 of the Corporations Act.
• “Forward Trade” specifies a transaction where the Value Date is later than two working days after the Instruction.
• “HiFX” means HiFX Limited (AFSL 240914) whose registered office is at Level 15 gen-I Tower,66 Wyndham Street, Auckland, New Zealand.
• “Margin” means the deposit or advance payment required by HiFX from the Client in advance of each Trade with the exception of a Spot Trade.
• “Margin Call” means request by HiFX to the Client to provide such additional amounts (not exceeding the full amount of the Sale Currency) as it may reasonably require on account of an adverse exchange rate movement between the date of contract and the Value Date.
• “Nominated Account” means the bank account nominated by HiFX from time to time into which the Sale Currency and/or Margin will be paid.
• “Order” means the Client’s oral or written request for HiFX to purchase currency at predetermined levels on the Client’s behalf if and when reached.
• “Product Disclosure Statement” means the product disclosure statement of HiFX as required to be provided to the Client in accordance with Part 7 of the Corporations Act.
• “relevant personal circumstances” means the Client’s personal objectives, financial situation, financial and personal needs as at the time the personal financial advice is provided to the Client by HiFX in accordance with the Conditions and Agreement.
• “Sale Currency” means the sums payable by the Client to HiFX in consideration of the Trade including, without limitation, any Margin or Margin Call.
• “Same Day Trade” means a Trade where is the Sale Currency is sold for a purchase currency by the end of the same Business Day, subject to clause 3.4.
• “Service” means any foreign exchange service provided by HiFX to the Client pursuant to these conditions, and includes the execution of a Trade on the Client’s behalf, the provision of an Exchange Rate Guarantee, and the provision of any regular payments abroad service.
• “Spot Trade” means a transaction where the Value Date is two working days after the date of instruction.
• “Statement of Advice” means a statement of advice provided by HiFX to the Client, where the Client is provided with personal financial advice in respect of the Trades.
• “Trade” means each transaction to purchase and deliver currency for the Client.
• “Trade Confirmation” means when HiFX confirms the details of the Trade to the Client by telephone.
• “Value Date” means the date specified by HiFX for each Trade on which the currency transaction matures.

Exchange Rate Guarantee

These exchange rate guarantee Terms and Conditions are additional to and supplement the private client currency services Terms and Conditions (“Master Conditions”) for they may be amended from time to time, and address additional matters specific to and necessary for the provision of an Exchange Rate Guarantee service by HiFX to the Client.

1. Instructions

1.1 HiFX may at its absolute discretion provide the Client with an Exchange Rate Guarantee (ERG) quotation from time to time.

1.2 The quotation will give details as mentioned in section 3.

1.3 HiFX reserves the right to change the Premium stated in the quotation prior to the client confirming agreement of the ERG and subsequent issuance of a contract note.

1.4 The client will instruct HiFX to confirm the details of the quotation or revise the quotation verbally before acceptance.

1.5 Once the quotation has been verbally agreed, a contract note will be issued to the client.

2. Details to be included in the ERG Contract Note

2.1 Quotation/Contract Note Date and time of transaction

2.2 The currency and amount sold to HiFX

2.3 The currency and amount bought from HiFX

2.4 Expiration Date

2.5 Expiration Time

2.6 Settlement Date

2.7 FX Guaranteed Rate

2.8 Premium Payable/Due

2.9 Premium Payment Date.

3. Financial Provisions

3.1 An ERG transaction between HiFX and the Client is subject to payment of the Premium by the Premium Payment Date by the Client to HiFX.

3.2 The Client shall pay the Premium into a bank account specified by HiFX no later than the Premium Payment Date.

3.3 The Premium shall be paid in the agreed currency and amount.

3.4 The Premium is not refundable under any circumstances in whole or in part.

3.5 Failure by the Client to pay the Premium by the Premium Payment Date shall be a fundamental breach of the conditions of the ERG transaction and shall entitle HiFX without prejudice to any other remedy available to it to immediately and, without notice to the Client, terminate the ERG without liability.

3.6 If HiFX terminates the Exchange Rate Guarantee under 3.5 above the Client shall be liable for all direct and Indirect costs and losses incurred by HiFX as a result of the termination of the ERG.

4. Process of Exercise

4.1 The ERG shall be deemed to be exercised when the Client gives notice to exercise the ERG agreement.

4.2 A notice to Exercise shall only be valid if completed on the Expiration Date before the Expiration Time.

4.3 If valid exercise of the ERG is completed then the specified payment obligations between HiFX and the Client will arise whereby a foreign exchange Spot Trade will be created where the exchange rate will be the FX Guaranteed Rate of the ERG that has been exercised.

4.4 Upon exercise of the ERG, the Client will sell and make delivery of the specified amount of the Sale Currency to HiFX, and the Client will buy and take delivery of the specified amount of the Bought Currency from HiFX on the Settlement date.

5. General

5.1 HiFX may from time to time amend these ERG conditions in the same manner as it may from time to time amend the Master Conditions.

5.2 The Master Conditions apply generally to all ERG transactions, but if there should be any inconsistency between the Master Conditions and the ERG conditions, the ERG conditions will prevail.

• “Exchange Rate Guarantee” (ERG) means an agreement whereby the Client has the right but not the obligation to enter into a foreign exchange transaction with HiFX as specified in the contract note.
• “Contract Note” confirms the details of a future foreign exchange transaction that the Client may exercise on the Expiration Date.
• “ERG conditions” means these terms and conditions for Exchange Rate Guarantee, as amended from time to time.
• “Exercise” means the process whereby the Client gives notice to HiFX on the Expiration Date that the ERG’S underlying foreign exchange transaction is required, and the consequent creation of the appropriate transaction as provided in clause 4.
• “Expiration Date” means the day on which the Client may elect to exercise the ERG always providing that such exercise is effective only if completed before the Expiration Time.
• “Expiration Time” means the time on the Expiration Date at which all rights granted under the ERG irrevocably cease and expire.
• “FX Guaranteed Rate” means the fixed exchange rate between the amounts of the sale Currency and the bought Currency, agreed at the time the ERG Contract Note is issued, or is confirmed/issued.
• “Master Conditions” means the version of the private client currency services Terms and Conditions with which this version of the ERG Conditions is issued, as amended from time to time.
• “Notice to Exercise” shall only be completed when the Client has notified (in the first instance by telephone followed by an email, fax or letter) HiFX of its wish to exercise the ERG and HiFX has responded to and acknowledged receipt of such notification.
• “Premium” means the consideration payable to HiFX by the Client for the rights provided by the contract note.
• “Premium Payment Date” means the Value Date by which the full amount of the Premium must be paid in cleared funds by the Client to the nominated bank account of HiFX.