TERMS AND CONDITIONS - GENERAL
The following terms and conditions ("Terms and Conditions") shall govern the general relationship between HGC and its clients (hereafter the "Client"), and apply to and form part of any agreement entered into between HGC and the Client (with such modification as may be appropriate).
In this Agreement and in any other agreements entered into between HGC and the Client unless the context requires otherwise:
The headings in this Agreement are inserted for convenience only and shall be ignored in constructing this Agreement. Unless the context otherwise requires, words (including words defined in this Agreement) denoting the singular number only shall include the plural and vice versa.
2. Applicable rules
2.1 The Client warrants and represents that he is familiar with and will keep himself updated on all the relevant laws, regulations, constitution, rules, customs, usages, rulings and interpretations of all relevant Market where the transactions are executed and that in any event he is separately advised on such matters and does not and will not rely on HGC in relation to the same.
3. Instructions and orders
3.1 The Clients authorises HGC to rely and act on, and treat as fully authorised by and binding upon the Client, any order, instruction or communication (by whatever means transmitted and whether or not in writing) which purports to have been given and which is reasonably accepted by HGC in good faith as having been given by the Client or on its behalf, without further enquiry on the part of HGC as to the genuineness, authority or identity of the person giving or purporting to give such instructions and regardless of the circumtances prevailing at the time. The Client agrees that it shall be responsible to HGC for all engagements, indebtedness and any obligations made or entered into in the Client’s name whether in writing or orally and howsoever communicated or purported to be given in the manner above.
3.2 Because of physical restraints on Markets and because of the very rapid changes in prices that frequently take place there may, on occasions, be a delay in making price or in dealing. The Client accepts that HGC may not always be able to effect or execute a transaction on the prices quoted at any specific time, or "at best" or "at market". The Client agrees in any event to accept and to be bound by the outcome when any discretion is given to HGC to execute a transaction. The Client agrees to fulfil and perform all contracts made on behalf of the Client or with HGC and that HGC shall not incur or substain or be liable for any loss in that connection incurred or sustained by the Client as a result of any failure to carry out the Client’s orders or instructions.
3.3 HGC shall have the sole and absolute discretion to refuse to accept or act on any instructions or requests of the Client without having to assign any reason therefore for such refusal.
3.4 In the event where the account with HGC is held in joint names, HGC shall be entitled (but not obliged) to accept instructions of any of the Clients which shall be binding on all of them.
4. Service of documents and notices
4.1 Any documents and notices served by HGC may be in writing and addressed to the address stated in any agreements stated in any agreements entered into between the Client and HGC and indicated therein by the Client as being his mailing address or any other address as the Client may notify HGC from time to time and shall be deemed to have been duly served and effective 24 hours after posting or, if sent by telex, facsimile or any other electronic means, upon despatch or, if served by hand, upon delivery.
4.2 HGC may upon request by the Client additionally provide Confirmation Advice to the Client via any electronic form of communication such as email, internet, paging, telecommunication or short message service via mobile phone or internet and the Client acknowledges and agrees that HGC in providing this additional service shall not be liable for any losses, damages, or expenses whatsoever suffered by the Client as a result of the Confirmation Advice not reaching the Client or as a result of any delays in the despatch or any inaccuracies in the Confirmation Advice, whether such non-receipt, delay or inaccuracy is due to any breakdown in or failure of any communication facilities, the error or negligence of any communication service provider (or their employees, independent contractors or agents) or the error or negligence of HGC (or its employees, independent contractors or agents). In the event of any discrepancies between the Confirmation Advice given as aforesaid and the Confirmation Advice given in writing, the written version shall prevail.
4.3 In the event that the Client instruct HGC not to despatch any communications to it by mail but to retain such communications at HGC offices:
5. Payment/Handling of Properties
5.1 Payment or properties should be handed only to authorise Settlement or Accounts Department staff of HGC. No one else is authorised to collect payment or to handle properties on behalf of HGC. The Client acknowledges that if the Client chooses to effect payment or to deposit properties by delivering a cheque or properties to anyone else (regardless of whether the person is an employee or agent of HGC or of any of its affliliated companies), payment or deposit of the properties shall be deemed to be made only when HGC receives the cheque or properties are delivered by the Client to that person.
5.2 The Client will make all payments to HGC without any set-off or counter-claim and without deduction or withholding for any taxes or similar charges. If the Client is obliged by law to make any deduction, the Client shall pay to HGC such greater amount which after deduction shall ensure that the net amount which would have been received by it had no such deduction been required. The same obligation shall not apply to HGC and any payment due from HGC shall be made net of any witholding required by law.
6.1 If the Client desires to make or take delivery of any Commodity, the Client shall notify HGC within a reasonable period of time in accordance with accepted market customs and practices prior to the last date on which HGC may give notice to make or take delivery of the Commodity in the relevant Market and further furnish HGC with such funds, information or documents as HGC shall require. Provided always that HGC shall be under no obligation to make or take delivery and HGC reserves the right to liquidate any Commodity transaction,without reference to the Client, at any time.
HGC shall be entitled, without notice to the Client, to set-off debts owing by the Client against any amounts due to the Client whether the debts are actual or contingent and irrespective of any differences in currency. If the account is a joint-account, then the Client hereby irrevocably consents to the combination or consolidation of such account with any other account(s) opened by any one or more of the Client with HGC (whether or not such account is opened with any other party) and to the exercise by HGC of its rights of set-off hereunder. HGC shall be entitled to effect such currency conversions and at such rates of exchange as HGC may in its absolute discretion deem necessary or appropriate in order to effect such set-off.
The Client agrees that Client’s Property shall be subject to a general lien in favour of HGC for the discharge of all or any indebtness and other obligations of the Client to HGC. The Client shall not be entitled to withdraw any moneys or securities held by HGC pending the repayment in full to HGC of any indebtedness of the Client to HGC. HGC shall be entitled at any time and without notice to the Client to retain, apply, sell or dispose of all or any of the Client’s Property if any such obligation or liability is not discharged in full by the Client when due or on demand in or towards the payment and discharge of such obligation or liability, and HGC shall be under no duty to the Client as to the price obtained or any losses or liabilities incurred or arising in respect of any such sale or disposal.
Client’s Property shall be charged to HGC by way of equitable charge as a continuing security for the payment of all sums that may from time to time become due to HGC and any other party so appointed by HGC whether under or by virtue of this Agreement or otherwise, including all fees, commissions, brokerage charges and/or all other amounts due to HGC pursuant to the Client’s instruction to HGC to purchase or sell or to perform any other act under any agreement ("Secured Indebtedness") or otherwise arising under any agreement with HGC, and so that subject as foresaid:
No act, omission or forbearance by HGC or any of its employees or agents shall constitute a waiver of HGC’s rights.
The Client agrees to indemnify HGC against all liabilities, claims, losses, and expenses of any nature including legal costs on a full indemnity basis arising out of any action taken or ommited to be taken in good faith by HGC pursuant to any instruction, notice or request by the Client or arising in connection with any other agreements entered into between the Client and HGC.
12. Joint accounts
In the event that the account is a joint account, the joint account holders agree as follows:
(e) In the event of the death of any joint account holder, the other joint account holder(s) will have the right of survivorship and HGC is instructed to pay all moneys or deliver properties to any one of the survivor(s).
13. Change of particulars
The Client agrees to notify HGC in writing immediately should there be any change in the particulars given in connection with any other agreements entered into between the Client and HGC. Until notification of such change is received by HGC, the Client shall absolve HGC of any responsibility or liability resulting from HGC’s acting on the basis of the original particulars.
14.1 The Client agrees and consents to the disclosure by HGC of all information and transactions relating to the Client’s account to any exchange, self-regulatory body or to any department or agency of any government in charge of any market or exchange on which the Clienthad traded.
14.2 The Client authorises HGC to contact such references including employers, banks and other financial institutions as HGC deem appropriate to obtain information to verify, clarify or assess the Client’s financial position. The Client further authorises such references to fully respond thereto.
15. HGC Agents
HGC is authorised to employ agents who may or may not be its affiliated companies, to perform all or part of its duties under any other agreements entered into between the Client and HGC and to provide to such agents information relating to the Client and/or to transactions requested by the Client.
16. Client’s Agents
16.1 Where the Client is introduced to HGC, HGC is entitled to share its brokerage, commissions and other fees levied with the person who introduced the Client (including without limitation the Client’s dealer’s representative with HGC’s affiliated company) on such terms as HGC deems fit even if such person has been appointed by the Client as its agent.
16.2 Where the person who introduced the Client to HGC is appointed as the Client’s agent to operate the Client’s account or accounts, the Client’s acknowledges and accepts that:
16.3 The Client acknowledges that every person (including without limitation HGC’s registered representative) introducing or recommending the Client to HGC has and had no authority to make any representation or give any warranty or undertaking on HGC’s behalf or bind HGC in any way and that the Client’s applications to HGC for an account to be opened with HGC is a result of the Client’s own deliberations and judgement and is not in reliance of any representation, warranty, undertakings or statement by such person on HGC’s behalf and that the Client’s application if accepted is to be subject to the terms in this Agreement with the intent that they be fully enforceable.
17. Electronic Recording
The Client agrees to the electronic recording of the Client’s telephone conversation with HGC or any of the Client’s agents or associated persons with or without the use of an automatic tone warning device. The Client further agrees to the use of such recordings and transcripts thereof for any purpose which HGC deems desirable including use as evidence by HGC in any dispute or legal proceedings between HGC and the Client. HGC is not required to maintain copies of such recordings and transcripts.
18. Representations and Warranties
The Client warrants and undertakes (as relevant) that:
Where the Client is a corporation, the Client further warrants and undertakes that:
Where the Client consists of two or more persons:
The Client undertakes to ensure that all representations and warranties made herein continues to be accurate and correct so long as the Client maintains an Account with HGC.
19. Force majeure
HGC shall not be held liable to the Client for any partial performance, delay in performance, or non-performance of any of its obligations under any agreement with the Client by reason of any cause beyong HGC’s control, including but not limited to any act of force majeure, any breakdown or failure of transmission, communication or computer facilities, postal strikes or other industrial actions, the failure of any exchange, market or clearing house, or failure of any relevant correspondent or other agent for any reason to perform its obligations, war, hostility, riot, civil commotion, requisition by any government or any regional or local authority, or any agency thereof, or any law, regulation, edict, executive order or mandate of any such body (including but not limited to any change in exchange control laws and regulations or any moratorium or restrictions on currency exchange or remittance) or any act of God, fire, flood, frost, storm or explosion. The Client agrees that any and all properties heretofore or hereafter deposited, whether held by HGC or its agents, are at the Client’s sole risk as regards any loss or destruction of or any damage to the same.
20. Limitation of liability
HGC shall not be liable for any loss or damage that the Client may suffer or incur due to any act, ommission or failure of HGC or any of its appointed agents to execute or perform any transactions which it is authorised to do pursuant to the conditions herein or otherwise requested by the Client except for any act, omission or default caused by the wilful default, negligence or fraud of HGC or it’s directors and employees. Provided that:
21. Terms to govern once any facility is used
Regardless of whether the Client has signed the required documentation the Client will be deemed to have agreed to the terms and conditions herein if the Client commences to trade through HGC or to use any of the facilities provided by HGC, and the Client confirms that all transactions executed on the Client’s instructions, will be governed by these terms and conditions.
If any part, term or provision of this Agreement is held by any body of competent jurisdiction to be illegal or in conflict with any law or regulation, the validity of the remaining parts, terms or provisions shall not be affected, and the rights and obligations of the parties shall be construed and enforced as if this Agreement did not contain the particular part, term or provision held to be illegal, in conflict or otherwise invalid. Provided always that HGC may at HGC’s absolute discretion terminate this Agreement forthwith as if as event of default has occurred if the remaining terms, parts or provisions of this Agreement are unacceptable to HGC.
The Client agrees to be bound by any amendments to these Terms and Conditions as may be determined by HGC and notified to the Client in writing from time to time. Such amendments shall take effect seven (7) days from the date of the letter informing the Client of such amendments. If the Client gives notice in writing to HGC objecting to the amendments of the Terms and Conditions, such notice of objection by the Client shall, unless otherwise accepted by HGC in its absolute discretion, be deemed to be a notice to terminate all the Client’s agreements with HGC.
The Account may be terminated for any reason whatsoever by either party giving the other party a notice in writing. Upon termination, HGC is authorised to deliver as soon as is practicable thereafter any securities held by it to the Client or the Client’s successors in title after repayment of any debit balance and after deduction of HGC’s outstanding fees and expenses, if any. Such notice to terminate the Account shall not be a waiver of the obligations of each party inrespect of the Account and these obligations shall continue to be governed by these terms until such obligations are concluded.
25. Laws and jurisdiction
The Client submits to the non-exclusive jurisdiction of the Courts of
New Zealand, but HGC will be at liberty to proceed against the Client
in any court in any jurisdiction. All transactions and agreements between
the Client and HGC shall unless otherwise agreed be governed by and interpreted
in accordance with the laws of New Zealand.
ACKNOWLEDGEMENT OF RECEIPT OF THIS TERMS AND CONDITIONS - GENERAL
This acknowledges that I/we have received a copy of the Terms and Conditions - General and understand its contents.