This agreement is a contract between the Client (as identified in the Client Application Form, (Part A of this Agreement) and Ace Forex (the “Company”). It sets out the terms under which AFX will provide its services to Clients. Please read it carefully and seek clarification of any points that may be unclear. The terms set out will come into effect, and the rights and obligations of the parties will apply, from the date of signing of this Agreement.
Ace Forex (“AFX”) deals as principal in Spot Foreign Exchange and Spot Metal Contracts and agrees to provide Services to the Client on the basis of the:
The Client wishes to appoint AFX to deal in Spot Foreign Exchange and Spot Metal Contracts on its behalf. In doing so, the Client acknowledges that:
The defined Terms as used in this Agreement are in capitals and are defined in this Clause.
• Reference to the singular includes the plural and vice versa
• Reference to male implies the female and vice versa
• In this Agreement, any reference to the Client where the Client comprises more than one person indicates they shall be bound jointly and severally by the Agreement
• Headings, examples and references in this Agreement are for reference only and do not affect its interpretation
• Any reference to any statute, regulation or order made shall imply reference to all amendments, revocations or other changes made to such statue, regulation or order.
In the Agreement, the following terms, unless otherwise stated, have the following meanings:
AFX, We, or Us means Ace Forex
Agreement means all the terms, conditions, appendices, representations and warranties contained herein and in any supplementary agreement including AFX‟s Client Services Agreement and Disclosure Statement.
Allocation Policy provides that orders will be executed in the order in which they are received; except that client orders will be filled before house trades are filled.
Authorized Person means the Client and any other person who has been authorized in writing by the Client to transact on the Clients account and who may bind the Client under the terms of this Agreement.
Base Currency means the currency in which the relevant account has been denominated and will be US dollars unless otherwise notified.
Business Day means for Spot Foreign Exchange Contracts and Spot Metal Contracts a day on which the relevant underlying exchange rate or commodity is available for dealing. In relation to other services and notices, it means any day (other than a Saturday, Sunday or public holiday) on which banks are open for business in Auckland, New Zealand.
Client means the person(s) who have executed this document in the Client Services Agreement and have been granted an account with the Company.
Client Application Form means the form given to Clients to apply for an account with AFX.
Client Bank Account has the meaning given to it in the Futures Industry (Client Funds) Regulations 1990.
Client Funds has the meaning given to it in the Futures Industry (Client Funds) Regulations 1990.
Client Fund Regulations means the Futures Industry (Client Funds) Regulations 1990.
Collateral means securities or other assets, including money, or any guarantee or indemnity accepted by AFX from the Client instead of cash for the purposes of complying with the Client‟s obligations to pay, or as approved by AFX as collateral.
Contract means any transaction relating to Spot Foreign Exchange and Spot Metals or any other contracts that may be introduced by AFX from time to time or any other agreement which AFX may enter into to enable it to fulfill its obligations under such contract.
Contract for Difference (or “CFD”) means an agreement which allows you to make a profit or loss from fluctuations in the price of a CFD. The price of a CFD is based on the price of an underlying asset ("Underlying Asset ") e.g. a commodity on an exchange.
Counterparty means a person or entity that takes the contra position of any Contract, including a bank or financial intermediary, whether in NZ or overseas.
Dealing has the meaning as defined by Section 37 (5) of the Securities Markets Act 1988.
Disclosure Statement means the information required to be disclosed to Clients by investment brokers and advisors in order to comply with the Securities Markets Act 1988.
Discretionary Account means an account where the Client has authorized another person(s) to trade that account on the Clients behalf.
Effective Date means the Date of signing of this Agreement as stated on this Agreement.
End of Day means 5.00 pm New York time.
Futures Contract has the meaning given to that term in Section 37 (1) of the Securities Markets Act 1988.
Futures & Options Exchange means an authorized or registered Exchange for the purpose of trading Futures and/or Options.
Initial margin means the amount required in respect of a Contract entered into by the Client.
Long Position means where a person holds an excess of purchase over sales of the relevant commodity, currency or other investment instrument.
Margin means either an Initial Margin or a Variation Margin
Minimum Equity Balance means the minimum money required in an account to maintain a Position.
Minor means a person under the age of 18 years at time of application.
New Zealand Exchange Limited is referred to in this document as NZX.
Off-Exchange means a market for trading Contracts that are not executed through a Futures & Options Exchange.
On-Exchange means a market for trading Futures Contracts that are executed through a recognized Futures & Options Exchange.
Order means an instruction to buy or sell Contracts or Securities and includes instructions to amend or cancel a previous instruction(s).
Regulatory Authority means any authority, body or person having responsibility for or in connection with the regulation or supervision of dealing in Futures Contracts or for the enforcement of any other law or regulation applicable to dealing in Futures Contracts.
Regulations means the Futures Industry (Client Funds) Regulations 1990 and any subsequent amendments.
Securities includes securities, stocks, warrants, exchange and non exchange traded funds, bonds, tradable contracts and other negotiable instruments in NZ and overseas.
Securities Commission means the Securities Commission established under Section 9 of the Securities Act 1978.
Short Position means where a person holds excess of sales over purchase of a relevant commodity, currency or investment instrument.
Specified Client Investment has the same meaning as in the Futures Industry (Client Funds) Regulations 1990
Spot means the price that is quoted for immediate (spot) settlement. These are leveraged contracts for an agreed quantity at an agreed rate. The agreed quantity underlying this contract is not deliverable. These contracts are valued at the end of the trading day and reopened the following trading day at the current market price with the resulting profit or loss either debited or credited to the clients account.
Underlying Asset The underlying asset with reference to which the value of a Contract is determined
Variation Margin means the difference between the value of a contract at the time it is made and its value at any later date.
This Agreement takes effect, and the rights and obligations of the parties under this Agreement will apply, on and from the Effective Date and continues unless terminated in accordance with these General Terms and Conditions.
The Client acknowledges that these Terms and Conditions and your Account will continue until you have performed all of your obligations under this Agreement, all positions have been closed out and your account has been terminated in accordance with these General Terms and Conditions.
Both parties agree that the terms of their relationship and any subsequent dealings are subject to and bound by:
5.1 AFX may deal on Clients behalf on all Products as listed in AFXs Product Schedule (as amended from time to time).
5.2 AFX is principally in the business of providing online trading facilities allowing Clients to efficiently deal in Contracts and/or trade in Securities on an execution only basis. AFX will execute transactions on the Clients behalf solely on Client instructions and this should not imply any advice or any approval or recommendation on the merits of such transaction. AFX is not required to explain any risks that may arise from a particular transaction as the Client has had an opportunity to seek independent financial advice.
5.3 AFX does not provide advice, recommendation or direction on the merits of any particular transaction. However, from time to time, AFX may provide the following:
It should be clearly noted that AFX makes no representations, warranties or guarantees as to the suitability, completeness, truth or accuracy of such information, recommendations or advice provided and does not accept any responsibility for decisions based (in full or in part) on such information. AFX recommends Clients consider all information, opinions and guidance in light of specific individual circumstances.
5.4 Neither AFX nor its employees trade on a discretionary basis. If approached by a staff member to trade on a discretionary basis, AFX requests that the Client rejects such an offer and advises AFX immediately of this approach.
5.5 As AFX is trading in OTC products, these are off Exchange. The Client agrees that AFX can deal for the Client as principal where the relevant underlying market or security is not regulated by the rules of any stock exchange or investment exchange. However, AFX may hedge such trades either through OTC contracts or Exchange traded contracts. In all cases, as AFX is not a member of any Exchange, those contracts will be traded with AFX‟s counterparties who may or may not trade directly on the Exchange.
Some of the significant risks include the following:
Leveraged Products. The high degree of leverage that is obtainable in these type of Contracts because of small margin requirements, can work both for and against the Client. The use of leverage can lead to large losses as well as large gains. The Client may be required to pay further amounts to cover fees on open and closed positions.
Derivative market volatility These markets are speculative and volatile. Prices of the Underlying Security can fluctuate rapidly and may reflect unforeseeable events or changes in conditions. These can be difficult, if not impossible, to predict.
Sometimes markets move so fast that „gapping‟ or „slippage‟ occurs. This is where markets move so quickly that sudden drops or increases occur. If this occurs in the Underlying Market, this also affects the price and may mean the Client is unable to close out a position or open a new position at the price at which the Client has placed the order.
The placing of contingent orders (such as a stop-loss order) may not always limit a Client‟s losses to the amounts they may want. Conditions may prevent execution of such orders.
Other Factors in the Underlying Market
As the price of the Contract is based upon an Underlying Asset several factors in the Market may also affect an individual’s position. Certain political, governmental or other events may cause the underlying security to be suspended from trading. This may affect AFX’s ability to offer our products to Clients, including closing out existing positions.
Where the Market lacks liquidity (because of insufficient trading activity or where order demand at a particular price or for a particular asset in a specific underlying market exceeds supply), this may affect AFX’s ability to offer the relevant Contract in sufficient volume to allow a Client to close out a position or open a new position.
If the price moves against you, you may be required, at short notice, to deposit additional margin funds with AFX in order to satisfy our Margin Call requirements and maintain your position. This amount may be substantial.
If any Client does not provide those additional funds within the required timeframe, their position may be liquidated at a loss and they will be liable for any shortfall in their account. Positions are marked to market on a daily basis with payments being settled daily to account for market movements.
If a Client’s account balance falls below the minimum required balance as outlined in this Agreement, AFX reserves the right to reduce or close out that Client’s positions. The minimum balance may be varied at AFX‟s sole discretion.
Loss caused by spread
If a Client opens a position and closes it before the market has moved favorably, they may still incur a loss to the extent of the spread and any fees and commissions payable. Furthermore, the spread may be larger at the time the Client closes the position than when they opened it.
AFX reserves its right not to accept a Clients order request or to close out a position without their agreement in certain circumstances. Please refer to Clause 12 of these Terms and Conditions.
Third Party Supply
Data supplied by third parties may be delayed, incorrect or unavailable. AFX is not responsible for provision of those information services nor the consequences if they fail, are delayed or are wrong.
Foreign Exchange exposure
Client accounts are maintained in the currency that Client has nominated (Base Currency).
Where a Client deals in a Contract that is in a currency other than their Base Currency, all margins, profits, losses etc relating to that Contract are calculated using the currency in which the Contract is denominated.
For this reason, a Client’s profits and losses may be affected by fluctuations in foreign exchange rates. The conversions of the foreign currency balance of that Client’s account are undertaken automatically each day at End of Day using the Exchange Rate as quoted by AFX.
While AFX have made every reasonable effort to ensure continuity of services, operational risk such as disruptions to communications, computers, networks or external events may lead to delays in the execution and settlement of a transaction.
Should any Client fail to pay or provide security for amounts payable to AFX or fail to perform any obligation as outlined in the Client Agreement, these Terms and Conditions allow AFX to take steps to protect our position (including for example the power to close out positions and to charge default interest). Under these Terms and Conditions, the Client also indemnifies AFX and its agents, representatives and employees against certain losses and liabilities. AFX‟s liability is expressly limited. Please read these Terms and Conditions and our Disclosure Statement carefully to ensure these matters are clear prior to signing any documentation.
As these products are Contracts with AFX directly and are not traded on a licensed market or regulated exchange, they are not afforded the same protection as trades undertaken through an exchange or licensed market. There is no Guarantee Fund or equivalent applicable to trading in the OTC market.
Changes to NZ legislation, regulatory or taxation requirements may affect AFX's ability to provide our services to the Client and/or may have an adverse effect on the Client‟s dealings with AFX.
7.1 Account Opening In order to open an account, the applicant will be required to complete the relevant Application form, read the Disclosure Statement (including detail of the risks associated with trading these instruments) and provide identification as specified in the application. AFX is under no obligation to open an account with any individual or entity, even if all information has been provided.
Once the Client’s account is opened, the Client will be issued with a password and login details. It is the Client’s responsibility to ensure their password is kept secure. Should this security be breached, the Client must inform AFX immediately. Upon confirmation of identification, AFX will reissue a new password and, if requested by the Client, place a hold on the Client’s account.
7.3 Minimum deposit
Once a Client decides to trade, they will be asked to deposit an initial sum of money. This will include the money the Client wishes to trade and an Initial Margin sum (covering the Margin requirements).
A minimum deposit of $1000 is required to commence trading.
7.4 Right to call for funds / security
AFX may call for payment of money or the provision of other security which AFX considers, in its absolute discretion, appropriate in connection with the obligations incurred by it in respect of Contracts entered into for a Client’s account. Time is of the essence and the Client must pay any amount called or provide security within 24 hours of the call for payment or, if resident or domiciled outside New Zealand, then within 48 hours unless an alternative time period is stipulated in this Agreement. However, AFX reserves the right to close out client positions where there is insufficient equity held in the account.
7.5 Company Trading and Rights of Client
The Company, its directors, partners or employees may deal in Contracts as principal on their own account.
Upon placing an Order with an Executing Dealer (which may or may not be the Company), the Executing Dealer incurs obligations as principal, even though the Contract may have been entered on the Client’s instructions.
7.6 Account operation
Where a Client has more than one Account open with AFX, each account will be treated as an entirely separate Account unless AFX are advised in writing by the Client (and AFX, in its sole discretion agree) to treat the Client’s Accounts as one Account.
Where Accounts are treated separately, this means that any credit, (ie monies deposited as margin) will not, except where AFX exercises its rights under Section 14 of these General Terms and Conditions, discharge any of the Client’s liabilities in respect of another Account.
Where Accounts are treated as one Account, all references to Account in this Agreement will be references to the aggregated Accounts.
7.7 Use of Client’s Daily statements
You agree to use your daily statements to confirm all orders that you place with us and monitor your margin obligations.
AFX still reserves its right, in its sole discretion, not to accept any order given by you.
7.8 Account Statement
AFX will report all open positions and open orders to you via our electronic trading platform, with a daily statement providing a summary of open positions, free equity, margin requirements, cash balances, and fees and charges provided to you on a daily basis at the end of each trading day.
We encourage you to become familiar with the statements we provide you and understand how to read key elements such as your margin requirements, open positions, and any free equity.
7.9 Client obligation to review
It is your obligation to review any deal confirmation we send to you immediately to ensure its accuracy and report any discrepancies that you may have to us within 2 business days.
7.10 Currency Ledgers
Each Account may operate several Currency Ledgers. This means that money may be paid into the Account in several different Currencies and any net balances will be reported in the corresponding Currency Ledger. AFX will generally settle trades in the relevant Currency where an appropriate ledger exists, except that where such Currency balance in that ledger is insufficient, AFX may settle trades in any Currency Ledger. However, AFX will report all sums due to or from AFX in the Base Currency at market rates as provided in our trading system at the time of the daily rollover.
At any time, the Client may request amounts to be converted into the Client’s Base Currency at the relevant exchange rate as quoted by AFX and AFX reserves the right to convert into Base Currency only where any Currency Ledger balance falls below US$200 or its currency equivalent.
7.11 Contract notes AFX will send the Client a contract note containing essential details of the transaction following the purchase or sale of any investment.
All transactions will be due for settlement in accordance with the market requirements (as shown on the relevant contract note or advice). The Client will ensure that AFX receives all cash and securities when due with respect to any transaction which is to settle on that Client’s behalf and that all cash or investments held by, or transferred to, AFX will be and remain free of any lien, charge or encumbrance. All payments due to AFX will be made without set-off, counterclaim or deduction.
The value date for all transactions will be the second business day after the date of the transaction. Business days are Mondays to Fridays (excluding NZ public holidays and public holidays observed in New York).
AFX may agree, at its discretion, to provide credit for a transaction to be carried out overnight for a fee.
8.1 Segregation of funds
All money received from the Client or a person authorized by the Client is held in a separate Segregated Client Bank Account.
The Client agrees and acknowledges that, while client money is segregated from house money, all client funds are pooled together so an individual client balance may not be protected if there is a default in the overall segregated account balance.
8.2 Authorized deductions
The Client agrees that AFX is entitled to:
AFX will not pay any interest on client money that is held for a Client.
If, however, there is a debit balance on the Clients Account, then AFX are entitled to charge the Client interest at an interest rate as set by AFX on the full amount of that balance and the Client will be required to pay such interest. All interest rates are available from AFX upon request.
8.4 Deposits The Client may transfer funds to AFX using any of the following methods:
NOTE: We do not accept cash deposits.
It is the Clients responsibility to ensure all funds are accurately referenced with Client account number to allow AFX to promptly apply funds to the correct Account. We are not responsible for any delays incurred as a result of incorrect or incomplete referencing of funds transferred. AFX will only act on cleared funds so to maintain the Client’s open positions AFX recommends a Client maintains sufficient margin to allow time for clearance and transfer of funds.
Third Party Accounts: It is the Client’s responsibility to ensure that all moneys paid into their Account are from an account in the Client’s own name and not any third party, unless AFX have been advised in writing prior to sending of such monies. We are under no obligation to accept monies from any third party and will not accept or bear any liability of responsibility for any loss, damage or other event arising from our decision to return such monies, including any loss incurred by you because you are subsequently in default of your obligations under this Agreement.
8.5 Withdrawal of Client money
The Client may withdraw funds from an Account by sending a signed withdrawal request form by fax, email or post. This must detail Client Account details, the amount of the withdrawal and the account the money is to be paid into. AFX will not pay monies into a third party account so the account must be in the name of the Account holder.
The Client will only be able to withdraw money available after margin obligations have been met and any fees, commissions or other charges have been deducted. We require a minimum of $USD1000 to maintain an open account.
8.6 Third Party transactions
AFX is entitled to delegate its responsibilities to a Third Party or Associated Entity, including (but not limited to) an Exchange, clearing house, an intermediate broker, settlement agent or OTC counterparty located either within or outside NZ (“Third Party”). AFX shall not have any liability for any loss which the Client may sustain as a result of the insolvency, acts or omissions of any such Third Party.
In certain circumstances, AFX may hold client money for a Client which has been allocated but not claimed by them. AFX will cease to treat any unclaimed balances as client money after a period of six years, provided that all reasonable steps have been taken by AFX to contact the Client regarding this balance. AFX undertakes to make good any valid claim against balances that were released from being treated as client money, upon the provision by the Client of information to evidence the validity of their claim.
9.1 Placing an Order
Orders may be received in writing in any of the following ways:
It is the Client’s obligation to ensure that their instructions have been received by AFX.
Orders must be received allowing sufficient time for AFX to implement them and AFX does not accept responsibility for any errors or omissions resulting from misunderstandings in respect of oral or written instructions. It is the Client’s responsibility to ensure that all details relating to the Client’s Order are accurate; including without limitation the name of the Contract or Security bought or sold, the volume and the total value of that Order.
If AFX does not receive notification of any potential order discrepancy within two (2) business days, the daily trading statement of confirmation issued by AFX to the Client via the online trading platform will be deemed to have been accepted by the Client.
9.2 Hours of operation
AFX generally operates between the hours of 22.00 Sunday GMT time and closes at 21.00 Friday GMT time except that:
All orders received outside Trading Hours will not be implemented until the commencement of the next Trading Day.
9.3 Order Types
A list of Order Types is published on AFX’s website and is amended from time to time.
9.4 Order Execution
In accordance with AFX’s Allocation Policy, orders will be executed in the sequence in which they are received; except that client orders will be filled before house trades are filled.
9.5 Order confirmation
Should the Client place an order via our electronic trading platform, they will receive instant confirmation as to the status of the order. It is important this is checked carefully. Telephone orders will be repeated back to the Client for confirmation and the conversations will be taped.
9.6 Right to refuse to deal
AFX reserve the right to, at any time, limit or refuse to enter into a Contract for the Client but warrant that we will notify you of any refusal or limitation as soon as practicable. Such refusal or limitation shall be without prejudice to any other rights and powers under this Agreement.
The Company is not required to act in accordance with the Client’s instructions where to do so would cause a breach of any applicable legislation, rules or regulations or cause a breach of this Agreement.
9.7 Opposite positions
In certain circumstances, AFX may take the opposite position in the Contract, either acting for another client or on our own account.
9.8 Close Out of Positions
At any time, with or without notice to the Client, and in addition to any other rights AFX may have under this Agreement, AFX may choose to close out or limit the size of a Client’s open position(s) (net or gross) if any of the following circumstances occur:
9.9 End of Trading Day These contracts are valued at the end of the trading day and reopened the following trading day at the current market price with the resulting profit or loss either debited or credited to the clients account.
9.10 Cancellation of orders
An order (or part of an order) can be cancelled at any time prior to its acceptance by AFX. If not received prior to acceptance, then that order shall be considered valid and binding under these General Terms and Conditions and the Client will be liable to settle the Order, in whole or in part as relevant.
9.11 No legal or beneficial interest in Underlying Asset
The Client acknowledges that investing in these type of Products s does not transfer the legal or beneficial interest in any Underlying Asset and the Client has no right or obligation to acquire or deliver such Underlying Asset.
9.12 AFX’s right to deal
The Company may deal in Contracts as principal on its own account and the Company directors, partners or employees may deal in Contracts on their own account.
AFX may, in certain circumstances, take the opposite position in a Contract, either acting for another Client or on our own account.
AFX may rely on and treat as binding any written or oral instruction which we have accepted in good faith and which we believe to be from you or someone entitled to act on your behalf.
Entirely at AFX’s discretion, we may accept verbal or written instructions and may request that verbal instructions be confirmed in writing.
The Client agrees that any instruction and communication sent by the Client or on its behalf is made at the Clients risk and the Client authorizes us to rely and act on, and treat as fully authorized and binding upon the Client, any instruction (whether or not in writing) which AFX believes in good faith to have been given by or on behalf of the Client by any intermediary whom AFX believe in good faith to have been duly authorized by the Client.
AFX are entitled to act on the basis that all trades, orders or instructions transmitted online using your login, password, and/or account number are authorized by you unless we have already been notified, in writing, by you of a suspected breach of your login or password details. We are not required to establish the identity of any person quoting a Client’s username, account number and/or password or if we reasonably believe that person to be an Authorized Person.
It is your sole responsibility to keep all security information relating to the Account confidential (including username, password and account details) and to advise us immediately in writing if you believe that such details have been breached.
AFX is not liable in any way for any act or omission by us in reliance on any instruction given or action taken by a person acting or purporting to be acting on behalf of the Client who is not listed as an Authorized Person
AFX reserves its right to in our absolute discretion and without explanation to the Client, refuse to act upon any instruction, particularly if AFX believe that it may not be practical or in our opinion infringe any law, rule, regulation or term of this Agreement and will not be liable for such act or omission in accordance with our limitation of indemnity in Clause 11 of these General Terms and Conditions.
This clause will not apply where liability arises from an act of fraud, negligence or dishonesty of AFX, its agents or employees.
10.2 Authorized Persons
Those persons authorized to instruct AFX with respect to your account are any persons listed in the account Application Form as “Authorized Persons” or those persons whose names have been received in writing to AFX as Authorized Persons and who have been accepted by AFX as an Authorized Person (ie provided the required identification and met all compliance requirements).
Instructions accepted by such Authorized Persons are deemed to have been placed by the Client and AFX may also provide information on the Account to such Authorized Persons. The Client warrants that such Authorized Persons may give instructions, place Orders and have read the Terms and Conditions of operating an Account with AFX.
On occasion, and at AFX‟s sole discretion, AFX may require Client confirmation where an instruction from an Authorized Person seeks to close an Account or remit money due to the Client.
By including Authorized Persons on the Client’s Account, the Client personally indemnifies AFX against any costs or losses AFX may suffer as a result of the Authorized Person, or a person who appears to AFX to be an Authorized Person, giving incorrect or unauthorized Orders, instructions or failing to comply with the terms of this Agreement.
10.3 Cancelling Orders If the Client wishes to close a position, then any related orders must be cancelled. AFX cannot revoke any orders once initiated in the system so the Client will be liable for all orders made once actioned.
10.4 Communication difficulties If at any time the Client is unable for any reason to communicate with AFX we shall not:
10.5 Power of Attorney A person authorized under a limited power of attorney as verified by AFX, may be an Authorized Person once approved in writing by AFX.
10.6 Assignment This Agreement is between the Client and AFX and the Client is not entitled to assign or delegate any obligations or rights to any other party without AFX’s prior written consent.
AFX retains the right to assign to or take an assignment from any party of any benefits associated with this Agreement, any Contract or the balance of a Client’s account.
If any Client defaults in payment of obligations owed to AFX, we retain the right to assign to any person all or any of our rights in respect of money owing to us under this Agreement, as well as any security or other remedies in respect of such default.
Unless caused by AFX’s fraud, willful default or gross negligence, neither we nor any associated company nor any employee shall be liable to the Client:
Unless caused by our fraud, willful default or gross negligence, the Client will upon demand, indemnify us, our associated companies and employees against any costs, damage, losses or liabilities however arising by reason of or in connection with any action taken, not taken, or any transaction entered into or not entered into by AFX under this Agreement.
12.1 Client obligation to pay charges
All charges will be notified to the Client in writing prior to the relevant dealing or trading taking place. Such charges will be either as outlined in this Agreement or as otherwise notified in writing and will take effect on the date mentioned in the written communication.
The Client agrees to pay:
The Client will be provided with details of the total price to be paid in connection with a transaction including all related fees, commissions, charges and expenses and taxes payable via us, or if an exact price cannot be indicated, the basis for the calculation of the total price.
12.2 Client obligation to pay margin When dealing in Contracts with AFX the Client will be required to pay such sums of money as AFX may require under this Agreement and as specified in this Agreement or otherwise advised to the Client in writing. Such sums may include Deposits, Initial Margin, Variation Margin, and Security, Collateral or other amounts required for clearance of any debit balance in an Account.
Liability to pay an Initial margin accrues at the time the Contract is executed regardless of when a call is made.
Liability to pay a Variation margin accrues at the time the margin comes into existence, regardless of when a call is made.
12.3 Rebates to third parties AFX may rebate to third parties all or part of the commissions that are charged to the Client and undertake to provide further details on request. We may also have arrangements for spread-based rebates to third party introducing brokers where AFX considers such arrangements will not affect the spread we would otherwise have offered and we undertake to provide the Client with further details on request.
12.4 When due and payable All such commissions, fees, taxes and charges owed to AFX will be accrued at the time of transaction (as advised on the Client statement), and will become due and payable on the 20th of each month following the transaction; except that, where a Client requests withdrawal of all funds held by AFX, such disbursements shall be deducted immediately prior to payment into the Client’s bank account.
open positions show notional losses; or
AFX considers that market conditions indicate that funds may reasonably be required to meet any margin requirements on open positions; or
the Client has any contingent liability in respect of any other Account; or
there is an unresolved dispute between the parties to this Agreement; or
AFX are required to withhold funds in order to comply with regulatory or legal obligations
We will advise you if any of the above situations arise.
12.6 Currency of Payment
All amounts due to AFX or payable by AFX under this Agreement are payable in the currency AFX shall determine at the time of payment.
13.1 Initial Margin
Initial Margin is the amount debited from the Client account as soon as a new position is opened or an order is placed to open a new position. This acts as a security buffer and protects us in the event of Client default. Typically AFX will require an Initial Margin calculated as a percentage of the contract value.
The Initial Margin will vary depending on the Contact traded. The initial margin is determined at AFX’s discretion mostly by the liquidity of the underlying asset on which the product is based. Once the Client is trading, the daily statement will show the Margin requirement for each trade as well as the Total Margin Requirement i.e. combined Margins of all Contracts.
AFX advises the Initial Margin rates on the website and electronic trading platform. Initial margin is debited from a Client account should the Client place an order which is not executed. This margin remains debited from the Client’s account while the order remains on the market in anticipation of the order being filled. If the order is not subsequently filled the initial margin is credited to the Client’s account when the Client cancels the Order.
Should the Order be filled the amount of the initial margin will remain debited and will be returned immediately once the position is closed.
13.2 Variation Margin
The Variation Margin is the unrealized profit or loss on a Client’s open position. This is the difference between the value of the Contract when it was bought or sold and its current market price.
Should a Client’s position move in their favor AFX may refund part or all of the Variation Margin to the Client.
13.3 Gross Liquidation Value
The gross liquidation value (GLV) is the amount of money a Client would have left in their account should all of the Client’s open positions be closed out at the current market price less any interest, fees or transaction charges. Free equity is the GLV of all the positions in the Client’s account less the margin requirement. Free equity can be used to open a new position or can be withdrawn from the Client account. AFX may require the Client to maintain a minimum free equity balance in their account.
AFX reserves the right to vary the margin requirement applicable at any time.
13.4 Client obligation to monitor
AFX will report all margin requirements on a daily basis at the end of each trading day. It is the Client’s responsibility to ensure that they request all relevant information, including Margin requirements, prior to placing any orders or closing out positions. AFX will not be responsible for any losses the Client may incur in not requesting this information.
At all times, it is the Client’s sole responsibility to monitor all margin requirements under these General Terms and Conditions and any additional margin that may be required. To assist in this, we recommend that the Client consider this in light of the following factors:
Volatility of the market & relevant Underlying Asset
Any applicable exchange rate risk
Any open positions
Bank clearance times for funds transfer and clearance
Any such matter the Client considers may affect your margin requirements
While AFX will make reasonable endeavors to make a margin demand, we are under no obligation to provide such demand and the Client may have to close out or limit positions as provided under this Agreement.
A Client’s Margin requirement for each Contract will fluctuate based on i) the price of the Underlying Contract and/or ii) foreign exchange rate changes if the Contract traded has a different Currency than the Client’s Base Currency Account.
If adverse market movements occur, the Client may be required to deposit additional money (called a Margin Call) to cover the fluctuating margin requirement for a particular Contract. Whenever trading, the Client will need sufficient equity in their Account to maintain the Total Margin requirement.
13.5 Liability for margin calls The Client is responsible for payment of margin calls, deposits and other security as requested by AFX and the following is drawn to Client’s attention:
Liability to pay an initial margin accrues at the time the trade or deal is executed regardless of when a call is made. Liability to pay a variation margin accrues at the time the margin comes into existence, regardless of when a call is made.
Client liability is the total of all margin calculation provisions.
Should AFX make a margin call the Client is required to deposit funds into their account within 24 hours or the Account will be taken to be in default. In some circumstances, AFX may require payment within shorter time frames, (eg in times of increased market volatility) and payment will need to be made within these time frames in order to meet margin requirements.
We will make all reasonable attempts to contact Clients by their preferred method of communication. AFX are under no obligation to contact Clients. Where the market moves quickly or open positions are moving, we reserve the right to close out such positions under this Agreement without making any margin demand or any contact with the Client. Failure to meet margin call requirements may mean that we limit or close out positions in accordance with the terms of this Agreement. It is the Client’s sole responsibility, 24 hours a day, to monitor their own positions and maintain the required margin.
Any reduction in the application of Limited Hours trading means that open positions will be marked to market after close of trading and Client margin requirements will vary accordingly. If Clients do not wish to accept this additional risk, any affected Contracts may be closed out at any time after notice of such reduction has been given.
13.6 Delays in funds transfers
On occasion, AFX may, in its sole discretion, allow a Client time to forward funds to meet their margin requirements. This permission is given on a case by case basis and only upon prior written authority from AFX. Cleared funds are credited to Client Accounts on Business Days between 8.00am and 6.00pm Monday to Friday (NZ time). Where funds are received outside these hours, they will be credited on the next Business Day between 8.00am and 12.00pm.
14.1 Default Events The Client will be considered in default of this Agreement if any of the following events occur, whether or not they are within a Client’s control:
14.2 Actions Following a Default Event
AFX agrees to make good any errors identified by the Client; except that:
AFX shall not be bound by any transaction which purports to have been made (whether or not confirmed by AFX) at a price which:
16.1 Access to electronic order routing system If AFX provides the Client with access to an electronic order routing system, then the Client agrees and acknowledges that:
AFX may post confirmations of Contracts, daily statements, monthly statements and other reports that AFX provides, in addition to making them available using the Electronic Facility.
16.2 Market Information
Intellectual property rights are attached to the system and to any system that provides Market Information therefore; and such information is confidential information and the Client agrees that s/he will not publicly display, redistribute or re-transmit the Market Information in any way without having executed an appropriate agreement with AFX;
Market information provided through the system may not be accurate or current and that should be relied on at the Client‟s own risk.
AFX reserves the right to exercise certain discretions in respect of Client trading and Account management. In this regard, AFX will consider our commercial objectives, regulatory considerations and ethical obligations as a dealer. These discretions include, but are in no way limited to a right to:
Refuse any application for an Account without cause
Call for funds or security where we consider it would make commercial sense to do so (refer Clause 7.4)
Refuse to accept any trades placed by the Client that we judge to be clearly outside the prevailing market price such that they may be deemed non-market price transactions, whether due to manifest human error or stale/incorrect/broken price feeds. Where we have opened or closed a trade before becoming aware of the price disparity, we may at our absolute discretion either treat that trade as void or accept that trade at the prevailing Market price
Determine Commission rates and financing charges,
Decline the Client’s instructions or cancel any Order or instruction without reason, where:
AFX is not liable for any financial inconvenience or consequence as a result of using such discretions to cancel, limit or refuse an instruction from a Client.
17.1 Agreement and Representation
The Client wishes to appoint AFX to deal in Spot Foreign Exchange and Spot Metal Contracts on its behalf. In doing so, the Client acknowledges that:
The Client agrees to provide such information related to their business and financial affairs as may be reasonably requested by AFX in order to comply with AML/CTF or other legislative requirements.
AFX does not give financial or taxation advice and strongly recommends that such advice is sought before entering into any agreement or engaging in any trading.
We may provide generic financial advice or market reports to all our Clients. These do not take into account any individual‟s specific circumstances, needs or financial objectives. We will not give advice about whether the Client should open, close or hold a Contract as AFX is an execution only broker.
Either party may terminate this Agreement by giving notice in writing to the other. Termination will be effective upon receipt of the notice by the other party in accordance with Clause 24 of this Agreement.
Termination does not affect the existing rights and obligations of either party at termination. Upon termination of this Agreement, we will close out all Contracts and close out, abandon or exercise any Contracts not yet exercised, entered into by us for the Client unless earlier advised to transfer these Contracts to another Dealer. The balance in the Client‟s account at termination will be repaid to the Client by bank transfer no later than five business days after this Agreement terminates. We reserve the right to terminate this Agreement immediately and without notice in the event of any abuse of the Services provided, any abuse of our staff, or for any reason as may be deemed reasonable and appropriate by us in respect of our legal and regulatory obligations. AFX further reserves the right to suspend this Agreement pending review of our possible subsequent termination and without prior notice to the Client under such circumstances.
Where an Account is held jointly, this Agreement shall bind them jointly and severally and each of those persons is authorized to give instructions in relation to the Account unless AFX is otherwise advised in writing.
AFX is not required to verify that each Client approves instructions taken and may take instruction and any one of the persons named as Joint Account Holders may act as the Client and may give effective and final discharge of any of AFX‟s obligations.
If a Minor applies to become a Client, then either the Minor‟s parent or guardian are required to be a party to this Agreement. Any reference to Client in this Agreement is a reference to the parent or guardian of the Minor.
AFX, its subsidiaries, partners and agents recognizes its responsibility, and is committed to, ensuring the privacy of Client information.
22.1 Editing and Deleting, Access to personal information
The Client may request in writing to see their personal details and may request correction or alteration of details if required. It is the Client’s responsibility to ensure that information provided to AFX is accurate.
22.2 Information Collection
AFX have certain responsibilities under New Zealand law to verify the identity of clients and may need to make certain enquiries and obtain certain information from you for that purpose. The Client confirms that all information supplied will be accurate and consents to us passing on such information as we consider necessary to comply with any reporting requirements.
On application, AFX will collect personal and financial information. While there is no obligation to provide such details, this may mean that an application is declined. Once an application is accepted, AFX will provide the Client with a user name and password, which is used for statistical and security purposes.
During the term of this Agreement we continue to collect information, this includes records of all transactions and activities on the Client Account including details of Contracts entered into and margin calls made.
From time to time, AFX may collect additional personal information from the Client in connection with optional surveys, news updates or promotions. Providing this information is optional. Feedback from surveys will be used to improve our Services.
22.3 Recording of conversations
AFX may record Client telephone and online chat conversations. Records will be kept pertaining to the Contracts entered into by the Client, overall activity of the account and are available to the Client via the internet. All of these records are available upon request and if there is a dispute or anticipated dispute, the Client has a right to listen to recordings of those conversations.
A cookie is a small data file placed on a computer by our server. A cookie identifies Client’s computers to our web server when our website is visited by that Client. We do not use the cookie to collect or store personal information about Clients. AFX uses browser cookies to improve the speed and reliability of our security system.
22.5 Use of information
AFX advises the following:
Client’s personal information will be used only for the purposes for which it is collected, and retained only for as long as is necessary to fulfill the purposes for which the information was collected (including any time that we are required by law to retain such information) except that:
AFX may release information about a Client to a third party:
AFX will not sell or rent Client’s personally identifiable information to any third party.
AFX will not use Client’s personal information for any purpose that is not related to the products or services provided on the Site, or for any purpose for which the Client would not reasonably expect us to use the information.
22.6 Use of email
In entering into this Agreement, the Client gives AFX permission to communicate by email for relevant and related commercial emails. AFX may use email addresses to periodically send promotional emails from AFX about products and services, offers or updates relating to recent developments in our services that may be relevant. In accordance with The Unsolicited Electronic Messages Act 2007, if a Client does not wish to receive such emails, please advise us and we will immediately unsubscribe that person from such emails. AFX will not authorize any third party to use Client email addresses to send unsolicited emails.
22.7 Security Procedures
The Client is responsible for preventing unauthorized access to the trading system at all times. If the Client becomes aware that its systems have been accessed by unauthorized persons then the Client must advise AFX immediately.
AFX will maintain data accuracy and ensure appropriate use of any information supplied. As such we have put in place physical, electronic and managerial processes to protect the information the Client provides.
Additionally, all stored user information is protected from unauthorized access through the use of secure passwords, user logins and other security procedures.
22.8 Linked Sites
The following tax information applies only to NZ residents for tax purposes as defined within the Income Tax Act 2004. This information is general in nature and we recommend that Clients consult their own adviser relating to their specific situation.
Returns to NZ investors are affected by NZ taxation rules under the Income Tax Act 2004. Any gain is likely to be considered assessable income and therefore be subject to tax. Conversely, expenditure will only be deductible if it is:
We strongly recommend that Clients seek independent taxation advice on their trading.
AFX reserves the right to amend, alter, modify, substitute or supplement any of the terms in this Agreement at any time. You are deemed to have consented to any alteration that may be made to this Agreement if we do not receive notification otherwise from you, in writing, between the time that the changes were notified to you and their coming into effect. .
AFX may also alter, withdraw or add Contracts or prices offered or the criteria for any Product offered within the Product Schedule.
24.2 Title and interest It is agreed that all rights, title and interest to and in any payment between the Parties in respect of Contracts under this Agreement, vest in the recipient clear of any liens, charges, encumbrances or any other interest of the transferor or any third party.
Nothing in this Agreement creates in favor of either party, any mortgage, charge, lien, pledge or other security interest in any cash or property transferred by one to the other under any Contract.
24.3 Binding Effect
This Agreement shall cover all Client’s accounts opened or reopened at any time with AFX, irrespective of any change(s) at any time in AFX‟s personnel for any reason whatsoever.
This Agreement shall be binding on the Client’s beneficiaries, personal representatives, successors in title and permitted assigns.
24.4 Legal requirements
We are entitled to take such action as we consider necessary to ensure continued compliance with all Applicable Laws. If we reasonably consider any Client has breached these Laws, we reserve the right to terminate this Agreement immediately and without notice.
24.5 Entire Agreement This Agreement sets out all of the terms and conditions relating to the provision of our services and contractual relationship to you, subject to any subsequent amendments that may be notified. It supersedes any General Terms and Conditions previously agreed between us.
Each contract and any other transaction entered into between us and you under this Agreement constitutes a single agreement between us.
24.6 Conflict of interest
AFX, our Associates or other persons connected with us may have an interest, relationship or arrangement that is material in relation to any Contract affected, or advice provided by us, under this Agreement. By entering into this Agreement you agree that AFX may transact such business without prior reference to any Client(s).
We will not deliberately favor any person over another but will not be responsible for any loss which may result from such competition.
From time to time AFX may affect transactions with or through its Associates in order to provide the Services.
AFX may share commission and charges with its Associates or other third parties or receive remuneration from them in respect of Contracts entered into by AFX with you. Details of any such remuneration or sharing arrangement will not be set out on the relevant Contract Note but will be disclosed in accordance with any requirements of any Applicable Law.
Neither party will undertake any act or engage in any course of conduct which seeks to artificially alter or distort, or otherwise manipulate, the relevant underlying market in relation to any transaction contemplated by this Agreement.
Should any event occur which has the effect of making or declaring it unlawful or impracticable for AFX to offer Contracts in accordance with the terms outlined in this agreement, AFX may immediately terminate this agreement by providing written notice to you in accordance with Clause 24. Termination of this agreement will also result in the closure of all positions in accordance with Clause 19. Any such termination will not relieve the Client of any obligations the Client may have to AFX in accordance with this Agreement prior to its termination.
In accordance with this Clause, such events include any change in law, regulation, treaty, order, official directive or ruling or in their interpretation or application by any governmental authority or agent, the introduction, implementation, operation or taking effect of, any law, regulation, treaty, order or official directive or ruling.
24.8 Dispute Resolution
We will attempt to resolve any disputes in good faith and as quickly as possible, but in any event we will acknowledge receipt of your complaint within 5 business days. If unable to resolve a dispute, then the matter will be determined by an arbitrator as appointed by the parties. If the parties cannot agree on a single arbitrator, then the mater shall be decided by two arbitrators (one appointed by each party) in accordance with the Arbitration Act 1996.
24.9. Exclusive Jurisdiction
This agreement is governed by the laws in effect in New Zealand and all parties to this agreement agree to submit to the non-exclusive jurisdiction of the Courts of New Zealand. For the avoidance of doubt, this clause is inserted for the benefit of AFX and does not prevent AFX from commencing proceedings in any other relevant jurisdiction.