The Company will provide services to the Client strictly under the following Terms and Conditions (hereinafter called the “Terms”).
1. Definitions and Interpretations
1.1 Client classification – The Client is classified as a Retail Client, as defined in section 49 to the FSP Rules, unless classified as eligible investor (as defined in section 49A to the FSP Rules). If the Client wishes to be governed by the Company’s regulations for eligible investor according to the FSP Rules, then the Client must inform the Company in writing, clearly stating such a wish. The Client is obligated to accept the Company’s terms regarding eligible investors. The final decision regarding the Client’s classification will be at the sole discretion of the Company.
1.2 Nothing in this Agreement will exclude or restrict any duty or liability owed by the Company to the Client under the FSP Rules. If there is any conflict between this Agreement and the FSP Rules, the FSP Rules will prevail.
1.3 The Client must read this Agreement carefully and consult with the Company about anything which the Client does not understand. Unless the Client raises a specific issue, the Agreement will be regarded as setting out all the relevant terms concerning our Services. Trades that the Company enters into with the Client under this Agreement are legally binding and enforceable.
1.4 Terms stated below shall have the following meanings and may be used in the singular or plural as appropriate:
”Account” means a trading account of the Client with the Company;
”Account Detailed Report” shall mean a statement of the Clients portfolio, open positions, margin requirements, cash deposit etc. at a specific point in time;
“Authorized Person” means a person authorized by the Client under a power of attorney to give instructions to the Company;
“Balance” means the sum of the Client Account after the last transaction made within any period of time.
“Best Execution Policy” means the Company’s prevailing policy available at the Company’s Website regarding best execution when executing client orders;
“Bonus” means a credit granted by the Broker on the Client Account. Unless the parties comes to a specific bonus or credit arrangement, the following standard Company bonus terms shall apply: The Client is free to trade with the Bonus. The Bonus becomes withdrawable by the Client at the rate of 1 pip/standard LOT traded. The Bonus is credited as real deposit on the account once the full value of the bonus has been redeemed on the Client Account. The broker reserves the right to facilitate the Bonus settlement anytime within the 1 year interval at its convenience. The Bonus can be withdrawn by the Broker at any time should the Client misuse or abuse the Bonus facility or breaches any of the terms herein. Bonuses on a Client Account are not stackable. The broker does not pay spread commissions after credit based volume.
“Business Day” means any day on which banks are open for business in New Zealand;
“CFD Contract” or “CFD” means a contract which is a contact of difference by reference to fluctuations in the price of the relevant currency, security or index;
“Client” means a natural or legal person to whom services will be provided by the Company;
“Collateral” means any securities or other assets deposited with the Company;
“Company” means 3TG FX Financial Limited Partnership which is a Forex&CFD Trading company registered with the New Zealand Companies Office (registration number: 2555502) as well as its operating brand 3TG Brokers.
“Company’s Website” means www.3tgbrokers.com or any other website that may be the Company’s website from time to time.
“Contract” means any contract, whether oral or written, for the purchase or sale of any commodity, security, currency or other financial instruments or property, including any derivative contracts such as options, futures, CFDs or other transactions related thereto, entered into by the Company and the Client;
“Counterparties” shall mean banks and/or brokers through whom the Company may cover its Contracts with Clients;
“Durable Medium” means any instrument which enables the Client to store information in a way accessible for future reference for a period of time adequate for purposes of the information and which allows the unchanged reproduction of the information stored;
“Equity” equals (Balance + Floating Profit & Loss + Swap).
“Event of Default” shall have the meaning given to this term in Clause 14;
“First time deposit bonus” shall mean a bonus sum granted by the Broker from time to time during a promotional offer or to clients introduced to Broker from certain Partners. If not otherwise stated the bonus shall be credited on the Client Trading Account after the first deposit is made by Client and shall be withdrawable through redeeming the bonus via trading on the account. The first time deposit bonus is applied only to one account per Client. The redemption rate of the bonus is 1 pip/standard lot traded on the Client Account, according to the abovementioned standard Company bonus terms.
“Floating Profit/Loss” shall mean the unrealized profit (loss) of open positions at current prices of the underlying currencies, contracts or stocks, equity indexes, precious metals or any other commodities available for trading.
“Free Margin” means the funds not used as guarantee to open positions, calculated as: Free Margin=Equity-Margin.
“In writing” or “written” means inclusive of electronic form.
“Margin” means the necessary guarantee funds to open positions, as determined in the Spreads and Conditions Schedule;
“Margin Call” when the Margin posted in the margin account is below the minimum margin requirement, the Company shall issue a Margin Call (without assuming the obligation to issue such Margin Call), and in this case the Client will have to either (a) increase the Margin that he/she has deposited, or to (b) close out his/her position(s). If the Client does not do any of the aforementioned, the Company shall have the right to close the positions of the Client.
“Margin Level” is the index calculated as: Equity/Margin.
“Market Maker” means a professional participant in the financial markets who continuously offers purchase and sale prices for a financial instrument in order to buy and sell respectively in the event of interested Clients. Being a Market Maker, the Company is an immediate counterparty to the transaction(s) of the Client;
“Market Rules” means the rules, regulations, customs and practices from time to time of any exchange, clearing house or other organization or market involved in the conclusion, execution or settlement of a Contract any exercise by any such exchange, clearing house or other organization or market of any power or authority conferred on it;
“OTC” shall mean any Contract concerning a commodity, security, currency or other financial instrument or property, including any option, future, or CFD which is not traded on a regulated stock or commodity exchange but “over the counter” by the Company whether as a Market Maker as described in these terms or otherwise;
“Principal” means the individual person or the legal entity which is a party to a transaction;
“Security” means any securities or other assets deposited with the Company
“Services” means the services to be provided by the Company to the Client construed by these Terms. Services is inclusive of any dealing, order routing, advisory or other services which the Company provides from time to time to the Client by remote access via the Internet and which are subject to these Terms;
“Spreads and Conditions Schedule” means the schedule of spreads, charges, margin, interest and other rates which at any time may be applicable to the Services as determined by the Company on a current basis. The Spreads and Conditions Schedule is available on the Company’s Website and may be supplied to the Client on demand, and may be amended by the Company from time to time without notice to the Client.
“Swap” shall mean the funds withdrawn or added to the Client’s Account from rolling over (transfer) of an open position to the next day.
“Terms” mean these Terms and Conditions governing the Client relationship with the Company;
”Trade Confirmation” means a notification from the Company to the Client confirming the Client’s entry into a Contract;
“Trading Platform” means any online trading platform made available to the Client by the Company for placing orders, requesting quotes for trades, receiving price information and market related news as well as having a real-time revaluation of the open positions, through the Internet;
1.5 Any reference in these Terms to a person shall include bodies’ corporate, unincorporated associations, partnerships and individuals.
1.6 Any reference in these Terms to any enactment shall include references to any statutory modification or re-enactment thereof or to any regulation or order made under such enactment (or under such a modification or re-enactment).
1.7 Any headings and notes used in these Terms are intended exclusively for convenience and shall not affect the content and interpretation of these Terms.
1.8.1 Credits may be retained on the trading account credit without any restrictions for 3 months dating from the allocation of credits on given trading account. Following the 3rd month of allocating the credits to the trading account the retention of the credits will be subject to trading volume criteria as detailed below:
Clients have to fulfill the following trading volume criteria per US$ 1.000 in order to retain credits:
0-10% of deposit credited on the trading account: 1 standard LOT / month
11-20% of deposit credited on the trading account: 2 standard LOT / month
21-30% of deposit credited on the trading account: 3 standard LOT / month
Additional credit allocation that reaches a +10% threshold will increase the volume requirement by +1 standard LOT.
A client has US$ 3.000 balance and the Broker decides to grant 25% bonus in credit. US$ 750 is allocated on the trading account as credit. The equity on the account is US$ 3.750. In order to retain the credit after 3 months of the deposit made the account holder has to trade 3×3 standard lots/month.
1.8.2 Clients may receive credit only once regardless of how many accounts they open.
1.8.3 Clients may participate only in one promotion/special offer at a time. No bonuses, rebates or any other benefit available are to be applied on a parallel basis.
1.8.4 Should the client withdraw money from their trading account they will lose any credits that were allocated on the account at the time of the withdrawal.
1.8.5 Redemption rate of the credits (exchanging the credit to actual withdrawable funds) is 1 pip/ standard LOT by default. The default value may vary according to conditions set in individual agreements. Clients will always be informed by their introducing broker or the Broker should special redemption rules apply.
1.8.6 Should the trading balance reach zero and the trader creates exposure on the remaining credits, the trader will have 15 days to deposit the required funds to continue trading, otherwise the Broker will withdraw all credit on the trading account.
2.1 Under these Terms, the Company may enter into transactions with the Client in the following financial instruments:
a. CFD on currencies, equities, precious metals, financial indices, future contracts and any other trading tools.
b. Options, futures, swaps, forward rate agreements and any other derivative contracts relating to securities, currencies, interest rates or yields, or other derivative instruments, financial indices or financial measures which may be settled physically or in cash.
c. Options, futures, swaps, forward rate agreements and any other derivative contracts relating to commodities that must be settled in cash or may be settled in cash at the option of one of the parties (otherwise than by reason of a default or other termination event)
d. Options, futures, swaps, and other derivative contract relating to commodities that can be physically settled provided that they are traded on a regulated market and/or an MTF
e. Options, futures, swaps, forwards and any other derivative contracts relating to commodities, that can be physically settled not otherwise mentioned in point (d) above and not being for commercial purposes, which have the characteristics of other derivative financial instruments, having regard to whether, inter alia, they are cleared and settled through recognized clearing houses or are subject to regular margin calls
f. Options, futures, swaps, forward rate agreements and any other derivative contracts relating to climatic variables, freight rates, emission allowances or inflation rates or other official economic statistics that must be settled in cash or may be settled in cash at the option of one of the parties (otherwise that by reason of a default or other termination event), as well as any other derivative contracts relating to assess, rights, obligations, indices and measures not otherwise mentioned in this Section, which have the characteristics of other derivative financial instruments, having regard to whether, inter alia, they are cleared and settled through recognized clearing houses or are subject to regular margin calls.
g. Such other investments instruments agreed upon with the Company.
The Company does not warrant that all of the above financial instruments shall be available at all times.
2.2 Orders may be placed as market orders to buy or sell as soon as possible at the price obtainable in the market, or on selected products as limit and stop orders to trade when the price reaches a predefined level. Limit orders to buy and stop orders to sell must be placed below the current market price, and limit orders to sell and stop orders to buy must be placed above the current market price. If the bid price for sell orders or ask price for buy orders is reached, the order will be filled as soon as possible at the price obtainable in the market. Limit and stop orders are executed consistent with the Company’s Best Execution Policy and are not guaranteed executable at the specified price or amount, unless explicitly stated by the Company for the specific order.
2.3 Both the Company and the Client will, unless otherwise agreed in writing, enter into Contracts as Principal. If the Client acts on behalf of a Principal, whether or not the Client identifies that Principal to the Company, the Company shall not be obliged to accept the said Principal as client, and consequently shall be entitled to accept the Client as Principal in relation to the Contract.
3.1 The Client may give the Company oral or written instructions (which shall include instructions provided via the internet or by e-mail as described below). The Company shall acknowledge the reception of the instructions orally or in writing, as appropriate.
3.2 The Client shall notify the Company of the identity of any persons authorized to give instructions to the Company on behalf of the Client. Any such notice shall be in writing and shall set out the names and specimen signatures of the person or persons to be authorized. Any such authority may be revoked by notice in writing by the Client but shall only be effective upon written confirmation by the Company of the Company’s receipt of notice of revocation. The Company shall not be liable for any loss, direct or indirect, resulting from the Client’s failure to notify it of such revocation.
3.3 The Company shall be entitled to act upon the oral or written instructions to any person so authorized or any person who appears to the Company to be an Authorized Person, notwithstanding that the person is not, in fact, so authorized.
3.4 Once an instruction has been given by or on behalf of the Client, it cannot be rescinded, withdrawn or amended without the Company’s express consent. The Company may at its absolute discretion refuse any dealing instruction given by or on behalf of the Client without giving any reason or being liable for any loss occasioned thereby.
3.5 Any instruction sent via the Trading Platform or by e-mail by the Client shall only be deemed to have been received and shall only then constitute a valid instruction and/or binding Contract between the Company and the Client when such instruction has been recorded as executed by the Company and confirmed by the Company to the Client through the Trade Confirmation. The mere transmission of an instruction by the Client shall not constitute a binding Contract between the Company and the Client.
3.6 The Client shall promptly give any instructions to the Company, which the Company may require of the Client. If the Client does not provide such instructions promptly, the Company may, in its absolute discretion, take such steps at the Client’s cost, as the Company considers appropriate for its own protection or for protection of the Client. This provision is similarly applicable in situations when the Company is unable to obtain contact with the Client.
3.7 The Company shall not be liable for any loss, expense, cost or liability suffered or incurred by the Client as a result of instructions being given, or any other communications being made, via the Internet. The Client will be solely responsible for all orders, and for the accuracy of all information, sent via the Internet using the Client’s name or personal access codes. Transmission of an order shall not give rise to a binding Contract between the Company and the Client.
3.8 If the Company does not receive instructions from the Client to settle any open Contracts by the close of the Business Day, the Company is hereby authorized (but not obliged) to transfer all said Contracts to the next business date traded (Rollover). Such Rollovers may be subject to an adjustment in the transaction value, due to differences in currency interest.
3.9 The Company may (but shall not in any circumstances be obliged) require confirmation in such form as the Company may reasonably request if an instruction appears to the Company that such confirmation is necessary or desirable; or if such instruction is to close an Account or remit money due to the Client.
3.10 In general, the Company shall act according to instructions as soon as practically possible and shall, as far as trading instructions are concerned, act in accordance with the Company’s Best Execution Policy. If, after instructions are received, the Company believes that it is not reasonably practicable to act upon such instructions within a reasonable time, the Company may defer acting upon those instructions until it is, in the Company’s reasonable opinion, practicable to do so or notify the Client that the Company is refusing to act upon such instructions. The Company shall not be liable for any losses resulting from such deferral or refusal.
3.11 The Company is, in accordance with its Best Execution Policy, entitled to aggregate the Client’s orders with the Company’s own orders, orders of any of the Company’s associates and/or persons connected with the Company including employees and other clients. Furthermore, the Company may split the Client’s orders when executing these orders. The orders will only be aggregated or split if the Company reasonably believes it to be in the best interest of the Client. On some occasions aggregation and split of the Client’s order may result in the Client obtaining a less favorable price than if the Client’s orders had been executed respectively separately or mutually.
3.12 The Client agrees that the Company may record all telephone conversations, internet conversations (chat), and meetings between the Client and the Company and use such recordings, or transcripts from such recordings, as evidence in any dispute or anticipated dispute between the parties. However, technical reasons may prevent the Company from recording a conversation, and recordings or transcripts made by the Company will be destroyed in accordance with the Company’s normal practice. Consequently, the Client should not rely on such recordings to be available
3.13 If the Client is more than one person (for example, joint account holders):
a. the liabilities of each such person shall be joint and several;
b. the Company may act upon instructions received from any one person who is, or appears to the Company to be, such a person, and
c. any notice and other message presented by the Company to one if such persons is deemed to be presented to all said persons.
d. the rights of the Company in case an Event of Default occurs shall apply if an Event of Default shall be deemed to have occurred in respect of any such persons.
e. In case of different or contradicting orders, the last order received by the Company shall prevail.
3.14 If the Client operates several Accounts (or sub-accounts) and opposite positions are opened on different Accounts (or sub-accounts), the Company shall not close out such positions. The Client is specifically made aware that unless closed manually, all such positions may be rolled over on a continuous basis and thereby consequently all incur a cost for such roll-over.
3.15 Client is aware and accepts that in case of reaching significant exposure levels on Client’s Account, accoding to the Company’s discretion, The Company may decrease leverage on the Account without any further notice towards Client.
4. Internet and Electronic Trading
4.1 The Client acknowledges the electronic nature of the Services and the inherent risk that communications by electronic means may not reach their intended destination or may do so much later than intended for reasons outside the Company’s control.
4.2 Since the Company does not control signal power, its reception or routing via Internet or any other means of electronic communication, configuration of Client’s equipment or reliability of its connection, the Company shall not be liable for any claims, losses, damages, costs or expenses, including attorneys’ fees, caused directly or indirectly, by any breakdown or failure of any transmission or communication system or computer facility belonging to the Company
4.3 The Client is obliged to keep passwords secret and ensure that third parties do not obtain access to the trading facilities. The Client will be liable to the Company for transactions executed by means of the Client’s password even if such may be wrongful
4.4 Unless otherwise indicated or agreed any prices shown on the Company’s Trading Platform are indicative at the time shown based on data that is subject to constant change. The execution price is that which is confirmed to the Client on the Trade Confirmation issued (whether on screen or otherwise) after the Client order is executed, although this price may in certain cases differ from the price appearing on the screen at the time the order was placed. In the event that an erroneous price is used as the basis of any transaction the Company reserves the right to amend or revoke the details of the transaction(s) in question.
4.5 The limit order functionality of the Trading Platform will be subject to the Internet service remaining available over the period in which the limit order is outstanding, and will be subject to size limits input by the Company’s dealer(s) remaining in excess of the Clients order size and such dealer’s position limits and/or any other limits determined by the Company to be applicable to the Client (whether or not disclosed to the Client) still being able to facilitate the order at the time the limit price is reached.
4.6 The identification or use of any third party products, services or websites is not an endorsement by the Company of such services, products of websites. The Company accepts no responsibility or liability of any kind in respect of any materials on any website which is not under the Company’s direct control.
5. Client Funds
5.1 All amounts handed over by the Client to the Company or which the Company holds on behalf of the Client, for the provision of Investment Services as in Clause 2 above, shall be held in the name of the Client and/or in the name of the Company on behalf of the Client in an account with a credit institution or a bank authorized in a third country or any electronic payment providers/processors which the Company shall specify from time to time (“the ‘Bank Account”). The Client’s Funds may therefore be held outside the EEA state and in such circumstances the legal and regulatory regime may differ from that applicable in the client’s state with the effect that in the insolvency or equivalent failure of that bank or third party the treatment afforded to Client Funds may be different to the treatment afforded to Client Funds held in an account with a bank or third party subject to the clients state of jurisdiction laws. The Company will not be liable for any failure or insolvency of any bank or third party; however, applicable investor compensation or deposit protection schemes may protect a proportion of Client Funds with any bank or third party.
5.2 Unless the Client notifies the Company in writing or otherwise, the Company may allow a third party, such as an exchange, a clearing house or an intermediate broker to hold or control Client Funds where the Company transfers the Client Funds (a) for the purposes of a transaction for the Client through or with that person; or (b) to meet Clients obligations to provide collateral for a transaction (e.g. an initial margin requirement for a derivative transaction.
5.3 The Client authorizes the Company to make any deposits and withdrawals from the Client’s Account on his/her behalf including, without prejudice to the generality of the above, withdrawals for the settlement of all transactions undertaken under the Terms and all amounts which are payable by or on behalf of the Client to the Company or any other person.
5.4 Unless the Parties otherwise agree, in writing, any amount payable by the Company to the Client, shall be paid directly to the Client.
5.5 The Company may at its discretion from time to time and without the need for the Client’s specific authorization, set off any amounts held on Client’s behalf against the Client’s obligation to the Company and/or merge any Accounts of the Client with the Company.
5.6 The Client has the right to withdraw the funds which are not used for margin covering, free from any obligations (Free Margin, according to the Company’s discretion) from his/her Account without closing the said Account.
5.7 Money transfer request (withdrawal from trading account) is processed within three Business Days after receiving from the Client transfer request instructions. The transferring amount reduces the balance of the Client’s sub-account when the transfer request process is concluded. The Company reserves the right to decline a withdrawal request if the request is not in accordance with these Terms, or delay the processing of the request if not satisfied on full documentation of the Client.
5.8 Internal transfer request between Client’s Accounts is processed within two Business Days after receiving from the Client transfer request instructions.
5.9 The Client agrees to pay any incurred bank transfer fees when withdrawing funds from the Client’s Account to his/her designated bank account. The Client is fully responsible for payments details, given to the Company and the Company accepts no responsibility for the Client’s funds, if the details given by the Client are wrong. It is also understood that the Company accepts no responsibility for any funds not deposited directly into the Company’s bank accounts.
5.10 The Client agrees that any amounts sent by the Client or on the Client’s behalf in the bank account of the Company will be deposited to the Client’s Account at the value date of the payment received and net of any charges / fees charged by the bank account providers or any other intermediary involved in such transaction process. The Company must be satisfied that the sender is the Client before making any amount available to the Client’s Account, otherwise the Company reserves the right to refund / send back the net amount received to the remitter by the same method as received.
5.11 Withdrawals should be made using the same method used by the Client to fund his/her Account and to the same remitter. The Company reserves the right to decline a withdrawal with specific payment method and suggest another payment method where the client needs to proceed with a new withdrawal request, or request further documentation while processing the withdrawal request. If the Company is not satisfied with any documentation provided by the Client will reverse the withdrawal transaction.
5.12 The Client agrees to waive any of his rights to receive any interest earned in the money held in the Bank Accounts and consents that the Company will benefit for such an interest earned to cover registration / general expenses / charges / fees and interest related to the administration and maintenance of the bank accounts.
6. Company’s Spreads and Conditions
6.1 By accepting the Terms, the Client acknowledges that s/he has read, understood and accepted the information under the Trading Conditions Schedule available on the Company’s Website, in which all related spreads, charges, margin, interest and other rates are explained. The Company reserves the right to amend at discretion all such spreads, charges, margin, interest and other rates and proper information on such amendments will be available on the Company’s Website which the Client must review during the period the Client is dealing with the Company and especially before placing any orders to the Company.
6.2 The Company is entitled, but shall not in any circumstances be obliged, to convert:
a. any realized gains, losses, option premiums, commissions, interest charges and brokerage fees which arise in a currency other than the Client’s base currency (i.e. the currency in which the Client’s Account is denominated) to the Client’s base currency;
b. any cash currency deposit to another cash currency deposit for the purpose of purchasing an asset de–nominated in a currency other than the Client’s base currency;
c. any monies held by the Company for the Client into such other currency as the Company considers necessary or desirable to cover the Client’s obligations and liabilities in that currency.
6.3 Whenever the Company conducts currency conversions, the Company will do so at such reasonable rate of exchange as the Company selects. The Company shall be entitled to add a mark–up to the exchange rates. The prevailing mark–up is defined in the Trading Conditions Schedule.
6.4 In addition the Client shall be obliged to pay all applicable VAT and other taxes and all other fees incurred by the Company in connection with any Contract and/or in connection with maintaining the Client relationship.
6.5 The Company may share commissions and charges with its associates, agents or other third parties or receive remuneration from them in respect of Contracts entered into by the Company. Details of any such remuneration or sharing arrangement will not be set out on the relevant Trade Confirmations. The Company (or any associate) may benefit from commission, mark–up, mark–down or any other remuneration where it acts for the Counterparty to a Contract.
6.6 The Company will upon reasonable request and to the extent possible disclose to the Client the amount of commission, mark–up, mark–down or any other remuneration paid by the Company to any Business Introducer or other third party.
6.7 In respect of any transactions to be effected OTC, the Company shall be entitled to quote prices at which it is prepared to trade with the Client. Save where the Company exercises any rights it may have under the Terms to close a Contract, it is the Client’s responsibility to decide whether or not it wishes to enter into a Contract at such prices.
6.8 Client Accounts in which there have been no transactions (trading / withdrawals / deposits), for a set period of 6 months, will be considered by the Company as being dormant accounts. Owners of dormant accounts will be notified of their balances and in case of no response the Company is entitled to charge a monthly maintenance fee of US$5 on the remaining Balance of the Account until the Balance is zero. All Dormant accounts with a zero Balance will be closed.
7. Margin Deposits, Collateral and Payment
7.1 The Client shall pay to the Company on demand:
a. Such sums of money by way of deposits or as initial or variation Margin as the Company may from time to time require;
b. Such sums of money as may from time to time be due to the Company under a Contract and such sums as may be required in or towards clearance of any debit balance on any Account;
c. Such sums of money as the Company may from time to time require as security for the Client’s obligations to the Company; and
d. Any amount necessary for maintaining a positive balance in any and all Accounts
7.2 If the Client has, subject tothe prior written consent of the Company on each occasion, deposited a Security with the Company, then the Company at its reasonable discretion may determine the value by which Security shall be registered and consequently contribute to the Company’s demand towards the Client and the Company may continuously change such value of Security without prior notice to the Client.
7.3 The Client shall promptly deliver any money or property deliverable by it under a Contract in accordance with the Terms of that Contract and with any instructions given by the Company for the purpose of enabling the Company to perform its obligations under any corresponding Contract entered into between the Company and a third party.
7.4 If the Client fails to provide any Margin, deposit or other payable amount in accordance with the Terms in respect of any transaction, the Company may close out any open Contract without prior notice to the Client and apply any proceeds thereof to payment of any amounts due to the Company.
7.5 The Company reserves the right to return the funds deposited by the Client with the Company, to the Client at any time with or without reasons.
8. Account Reporting and Trade Confirmation
8.1 The Company will make available to the Client a Trade Confirmation in respect of any transaction or Contract entered into by the Company with or for the Client and in respect of any open position closed by the Company for the Client. Trade Confirmations will normally be available instantly following the execution of the transaction through the Trading Platform.
8.2 An Account Detailed Report is available to the Client through the Trading Platform. The Account Detailed Report will normally be updated periodically during the Company’s opening hours. By accepting the Terms the Client agrees not to receive any Trade Confirmations or Account Detailed Reports in printed form from the Company other than upon specific request.
8.3 The Client must verify the contents of each document received from the Company. Such documents shall, in absence of manifest error, be conclusive unless the Client notifies the Company in writing to the contrary within three (3) Business Days of receiving such document.
8.4 The Client is obliged to verify the contents of each document, including documents sent in electronic form from the Company. Such documents shall, in the absence of manifest error, be deemed conclusive unless the Client notifies the Company in writing to the contrary within (3) Business Days after having received such document. In the event that the Client believes to have entered into a transaction or Contract, which should have produced a Trade Confirmation or otherwise a posting on the Client’s Account, but the Client has not received such confirmation, the Client must inform the Company immediately when the Client ought to have received such confirmation. In the absence of such information the transaction or Contract may at the Company’s reasonable discretion be deemed non–existent.
9. Market Making
9.1 The Client is specifically made aware that in certain markets, including the foreign exchange markets, OTC foreign exchange options and CFD Contracts, the Company may act as a Market Maker.
9.2 The Company will, upon the Client’s written request, in general disclose to the Client whether the Company may act as a Market Maker in a certain instrument.
9.3 When acting as a Market Maker, the Company will under normal market circumstances quote the Client bid and ask prices.
9.4 In order for the Company to quote prices with the swiftness normally associated with speculative trading, the Company may have to rely on available price or available information that may later prove to be faulty due to specific market circumstances, for instance, but not limited to, lack of liquidity in or suspension of an asset or errors in feeds from information providers or quotes from Counterparties. If so and if the Company has acted in good faith when providing the price to the Client, the Company may cancel the trade with the Client but shall do so within reasonable time and shall provide the Client with a full explanation for the reason for such cancellation.
9.5 Following execution of any position with a Client, the Company may at the Company’s reasonable discretion subsequently offset each such client position with another client position, or a position with one of the Company’s Counterparties or retain a proprietary position in the market with the intention to obtain trading profits from such positions. Such decisions and actions may therefore result in the Company offsetting client positions at prices different – sometimes significantly different – from prices quoted to clients, resulting in trading profits or losses for the Company. This in turn can raise the possibility of the Client incurring what may be seen as an implied cost (i.e. the difference between the price at which the Client traded with the Company and the price at which the Company subsequently traded with Counterparties and/or other clients) due to any profits realised by the Company as a result of the Market Making function. However the Market Making function may involve significant costs to the Company if the market moves against the Company as compared to the price at which the Company traded with the Client.
9.6 The Client accepts that the Company in such markets where the Company acts as Market Maker, may hold positions that are contrary to positions of the Client, resulting in potential conflicts of interest between the Company and the Client.
9.7 In markets, where the Company acts as a Market Maker, the Client accepts that the Company has no obligation to quote prices to clients at all times in any given market, nor to quote such prices to clients with a specific maximum spread.
9.8 The Client acknowledges, recognizes and accepts that the price quoted to the Client includes a spread when compared with the price to which the Company may have covered or expected to be able to cover the Contract in a trade with another client or a Counterparty. Furthermore, the Client acknowledges, recognizes and accepts that said spread constitutes remuneration to the Company and that such spread can not necessarily be calculated for all Contracts and that such spread will not be specified at the Trade Confirmation or otherwise revealed to the Client.
9.9 Any commission costs, interest charges, costs associated to and included in the spreads quoted by the Company as a Market Maker in certain markets and other fees and charges will consequently influence the Client’s trading result and will have a negative effect on the Client’s trading performance compared to a situation if such commission costs, interest charges, costs associated to and included in the spreads did not apply.
9.10 Whilst dealing spreads and commissions are normally considered moderate seen in relation to the value of the assets traded, such costs may be considerable when compared with the Client’s margin deposit. As a consequence thereof the Client’s margin deposit may be depleted by trading losses that the Client may incur and by the directly visible dealing costs such as commissions, interest charges and brokerage fees as well as the said not visible costs for the Client, caused by the Company’s performance as a Market Maker.
9.11 If the Client is an active trader and is undertaking numerous transactions, the total impact of visible as well as not visible costs may be significant. Consequently the Client may have to obtain significant profits in the markets in order to cover the costs associated with trading activities with the Company. For very active Clients, such costs may over time exceed the value of the margin deposited. Normally, when trading margined derivatives, the lower the percentage of the applicable margin rate, the higher the proportion of the costs associated with executing a transaction.
9.12 The Client is specifically made aware that in the area of market making in foreign exchange, OTC foreign exchange options, CFD Contracts and other OTC products, significant implied costs can arise as a consequence of the profits made by the Company performing in its capacity as a Market Maker.
9.13 The Company’s performance as a Market Maker may negatively affect the Client’s Account with the Company and the said implied costs are neither directly visible nor directly quantifiable for the Client at any time.
9.14 The Company is at no time obliged to disclose any details of its performance or income produced as a Market Maker or otherwise related to other commissions, charges and fees.
9.15 The Client is specifically made aware that CFD Contracts may be OTC products quoted by the Company whilst operating as a Market Maker and not traded on a recognized stock exchange. As a result, the description above of the implied, not visible costs related to the Company’s performance as a Market Maker may also apply to any CFD Contract.
10.1 Internet, connectivity delays, and price feed errors sometimes create a situation where the price displayed on the Trading Platform does not accurately reflect the market rates. The concept of arbitrage and “scalping”, or taking advantage of these internet delays, cannot exist in an OTC market where the Client is buying or selling directly from the principal. The Company does not permit the practice of arbitrage on the Trading Platform. Transactions that rely on price latency arbitrage opportunities may be revoked, without prior notice. The Company reserves the right to make the necessary corrections or adjustments on the Account involved, without prior notice. Accounts that rely on arbitrage strategies may at the Company’s sole discretion be subject to the Company’s intervention and the Company’s approval of any Orders. Any dispute arising from such quoting or execution errors will be resolved by the Company in their sole and absolute discretion.
10.2 The Company shall have no obligation to contact the Client to advise upon appropriate action in light of changes in market conditions or otherwise.
11. Conflicts of Interest
The Company, its associates or other persons or companies connected with the Company may have an interest, relationship or arrangement that is material in relation to any transaction or Contract effected, or advice provided by the Company, under the Terms. By accepting these Terms and the Company’s Conflict of Interest Policy (which distinctly describes the general character and/or background of any conflict of interest) the Client agrees that the Company may transact such business without prior reference to any potential specific conflict of interest.
12. Business Introducer
12.1 In cases where the Client is introduced to the Company through a Business Introducer, Client acknowledges that the Company is not responsible for the conduct and/or representations of the Business Introducer or its associated persons while representing the Client to the Company. The Client agrees to waive any claims the Client may have against the Company, and to indemnify and hold the Company harmless for any actions or omissions of the Business Introducer or its associated persons.
12.2 The Client acknowledges and confirms that:
a. the Company does not bear responsibility for whatever agreements are reached between the Client and the Business Introducer.
b. his/her agreement with the Business Introducer may result in additional costs, since the Company may be obliged to pay commission fees or charges to the Business Introducer.
c. the Business Introducer is authorized to have ”View Only” access to one or more terminals, including terminal access through internet browser, to electronically monitor the activities of Clients’ Accounts introduced by the Business Introducer to the Company.
13.1 The Client acknowledges, recognizes and understands that trading and investments in leveraged as well as non–leveraged Contracts is:
a. highly speculative;
b. may involve an extreme degree of risk; and
c. is appropriate only for persons who, if they trade on margin, can assume risk of loss in excess of their margin deposit.
13.2 The Client acknowledges, recognizes and understands that:
a. because of the low margin normally required in margined transactions, price changes in the underlying asset may result in significant losses, which losses may substantially exceed the Client’s investment and margin deposit;
b. certain market conditions may make it difficult or impossible to execute orders at a stipulated price;
c. when the Client directs the Company to enter into any transaction, any profit or loss arising as a result of a fluctuation in the value of the asset or the underlying asset will be entirely for the Client’s account and risk;
d. the Company will, in general, not provide any advice to the Client. Therefore the Client agrees not to hold the Company responsible for losses incurred as a consequence of following the Company’s recommendations or suggestions or those of its employees, associates or representatives, unless the Company has exercised gross negligence in connection herewith; any information provided by the Company shall only be viewed as general information that does no constitute as advice.
e. the Company shall not conduct any continuous monitoring of the transactions already entered into by the Client. Thus, the Company cannot be held responsible for the transactions developing differently from what the Client might have presupposed and/or to the disadvantage of the Client;
f. guarantees of profit or freedom from loss are impossible in investment trading;
g. he/she has received no such guarantees or similar representations from the Company, from a Business Introducer, or representatives hereof or any other entity with whom the Client is conducting a Company account.
h. the Company shall not provide any advice to the Client on any tax issues related to any Services. The Client is advised to obtain individual independent counsel from its financial advisor, auditor or legal counsel with respect to tax implications of the respective Services.
13.3 The Client further acknowledges, recognizes and understands that many Contracts will be effected subject and in accordance with Market Rules, including, but not limited to, corporate events with respect to an underlying security, such as splits, dividends distribution, cease of commerce etc. In particular, the Client acknowledges that Market Rules usually contain far-reaching powers in an emergency or otherwise undesirable situation and agrees that if any exchange or clearing house takes any action which affects a contract then the Company may take any action which it, in its discretion, considers desirable in the interests of the customer and/or the Company. The Company shall not be liable for any loss suffered by the Client as a result of the acts or omissions of any exchange or clearing house or any action reasonably taken by the Company as a result of such acts or omission unless the Company has exercised gross negligence in connection hereby.
14.1 The Company reserves the right to retain, or make deductions from, any amounts which the Company owes, or is holding for the Client, if any amounts are due from the Client to the Company.
14.2 The Client hereby authorizes the Company, at the Company’s discretion, at any time and without notice or liability to the Client, to sell, apply, set-off and/or charge in any manner any or all of the Client’s assets and/or the proceeds from such assets which the Company has custody or control, in order to discharge all or any of the Client’s obligations to the Company.
14.3 Each and any of the following events shall constitute an Event of Default if:
a. The Client fails to make any payment or fails to do any other act or thing required by these Terms;
b. The Client fails to remit funds necessary to enable the Company to take delivery under any Contract on the first due date;
c. The Client fails to provide assets for delivery, or take delivery of assets, under any Contract on the first due date;
d. The Client dies or becomes of unsound mind;
e. An application is made in respect of the Client for an interim order or if a bankruptcy petition is presented in respect of the Client or, if a partnership, in respect of one or more of the partners, or if a company, a receiver, trustee, administrative receiver or similar officer is appointed;
f. A petition is presented for the winding-up or administration of the Client;
g. An order is made or a resolution is passed for the winding-up or administration of the Client (other than for the purposes of amalgamation or reconstruction with the prior written approval of the Company);
h. Any distress, execution or other process is levied against any property of the Client and is not removed, discharged or paid within 7 seven days; or
i. Any security created by any mortgage or charge becomes enforceable against the Client and the mortgagee or chargee takes steps to enforce the security or charge;
j. Any indebtedness of the Client or any of its subsidiaries becomes immediately due and payable, or capable of being declared so due and payable, prior to its stated maturity by reason of default of the Client (or any of its subsidiaries) or the Client (or any of its subsidiaries) fails to discharge any indebtedness on its due date;
k. The Client fails to fully comply with any obligations within the text of these Terms or any Contract including failure to meet margin requirements; l. Any of the representations or warranties given by the Client are, or become, untrue;
14.4 Upon the existence of an Event of Default, the Company shall at its discretion be entitled to:
a. The Company or the Client is requested to close out a Contract (or any part of a Contract) by any regulatory agency or authority; or The Company is obliged to so by operation of law or The Company reasonably considers it necessary for its own protection.
b. sell or charge in any way any or all of the Client’s Security, assets and property which may from time to time be in the possession or control of the Company or call on any guarantee;
ec. purchase any Security, investment or other property where this is, or is in the reasonable opinion of the Company likely to be, necessary in order for the Company to fulfill its obligations under any Contract; in this case the Client shall reimburse the Company, the full amount of the purchase price plus any associated costs and expenses;
d. deliver any Security investment or property to any third party, or otherwise take any action the Company considers being desirable in order to close out any Contract;
e. require the Client to immediately close out and settle a Contract in such manner as the Company may in its absolute discretion request;
f. enter into any foreign exchange transaction, at such rates and times as the Company may determine, in order to meet obligations incurred under a Contract; and
g. invoice back all or part of any assets standing to the debit or credit of any Account (this involves commuting Company’s or the Client’s obligation to deliver an asset into an obligation to pay an amount equal to the market value of the asset (determined by the Company in its absolute discretion) on the date invoicing back takes place).
H. All clients debts, present or future, shall become immediately due.
14.5 The Client hereby authorizes the Company to take all or any measures described in this Clause without notice to the Client and acknowledges that the Company shall not be responsible for any consequences of it taking any such steps, unless the Company has exercised gross negligence in connection herewith. The Client shall execute such documents and take such other action as the Company may request in order to protect the rights of the Company in accordance with these Terms or within the scope of any agreements between the Client and the Company.
14.6 If the Company exercises its rights to sell any Securities or property of the Client under this Clause, it will effect such sale, without notice or liability to the Client, on behalf of the Client and apply the proceeds of sale in or towards discharge of any or all of the Client’s obligations to the Company.
14.7 Without prejudice to the Company’s other rights, the Company may, at any time and without notice, combine or consolidate all or any of the Accounts maintained by the Client with the Company and off-set any amounts owed to or by the Company in such manner as the Company may determine.
15. Representations and Warranties
15.1 The Client represents and warrants that:
a. It does not have any legal disability with respect to, and is not subject to any law or regulation which prevents its performance of the Terms or any transaction contemplated by the Terms;
b. It has obtained all necessary consents and has the authority to operate to according the Terms (and if the Client is a company, it is properly empowered and has obtained necessary corporate or other authority pursuant to its constitutional and organizational documents);
c. sums, investments or other assets supplied by the Client for any purpose, subject to the Terms, do not derive from criminal or unlawful activity and, at all times, be free from any charge, lien, pledge or encumbrance and shall be beneficially owned by the Client;
d. It is in compliance with all laws to which it is subject including, without limitation, all tax laws and regulations, exchange control requirements and registration requirements; and
e. the information provided by the Client to the Company is complete, accurate and under no circumstances is misleading.
f. The Client agrees to indemnify and hold the Company, its affiliates and any of their directors, officers, employees and agents harmless from and against any and all liabilities, losses, damages, costs and expenses, including legal fees incurred in connection with the provision of the services under these Terms provided that any such liabilities, losses, damages, costs and expenses have not arisen for the Company’s gross negligence, fraud or willful default.
15.2 The above representations and warranties shall be deemed to be repeated each time the Client in the future for the duration of client relationship provides instructions to the Company
15.3 THE SERVICES AND ITEMS ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND COMPANY MAKES NO WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR PARTICULAR PURPOSE WITH RESPECT TO ANY SERVICE PROVIDED BY THE COMPANY.
15.4 THE COMPANY DOES NOT WARRANT THAT COMPANY SITES, ITS SERVERS, OR E- MAIL SENT FROM THE COMPANY ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE COMPANY WILL NOT BE LIABLE FOR ANY DAMAGES OF ANY KIND ARISING FROM THE USE OF TRADING PLATFORM OR WEBSITE(S), INCLUDING, BUT NOT LIMITED TO DIRECT, INDIRECT, INCIDENTAL, PUNITIVE, AND CONSEQUENTIAL DAMAGES.
16. Indemnity and Limit of Liability
16.1 The Client shall indemnify the Company and keep the Company indemnified against all losses, expenses, costs and liabilities whatsoever (present, future, contingent or otherwise and including reasonable legal fees) which may be suffered or incurred by the Company as a result of or in connection with any of the following:
a. the Terms have been breached by the Client;
b. the Company enters into any transaction or Contract; or
c. the Company takes any of the steps which the Company is entitled to take in an Event of Default
16.2 This indemnity shall survive termination of the Terms.
16.3 The Company shall not be liable for:
a. any loss, expense, cost or liability (together “Loss”) suffered or incurred by the Client unless such Loss is suffered or incurred as a result of the Company’s gross negligence or intended default of obligations by the Company; or
b. any loss caused by actions of the Company, within the limits of realization of its rights, stipulated in these Terms;
c. any consequential loss suffered or incurred by the Client whether arising from the Company’s negligence or otherwise; or
d. any loss suffered or incurred by the Client as a result of any third party (including any Counterpart or any person whom the Company engages in connection with a Contract, for example an intermediate broker) failing to perform its obligations to the Company and, in such circumstances, the Company shall not be liable to perform its obligations to the Client to the extent that it is unable to do so as a result of the third party’s default.
16.4 Especially, the Client acknowledges, recognizes and accepts that any market recommendation and any information communicated by the Company does not constitute an offer to buy or sell or the solicitation of an offer to buy or sell a Contract and that such recommendation and information, although based upon information from sources believed by the Company to be reliable, may be based solely on a broker’s opinion and that such information may be incomplete and may be unverified and unverifiable. The Company makes no representation, warranty or guarantee as to, and shall not be responsible for, the accuracy or completeness of any information or trading recommendation furnished to the Client.
16.5 The Client shall indemnify the Company and keep the Company indemnified against all losses, which the Company may suffer as a result of:
a. Any error in any instruction given by an Authorized Person; or
b. Acting on any instruction, which is, or appears to be, from an Authorized Person.
17.1 Communications may be made to the Client at such address, telephone, facsimile or email address notified from time to time to the Company for this purpose.
17.2 Unless otherwise agreed in writing, all communications shall be made in the English language and shall be served by sending them by prepaid first class post, e-mail or facsimile transmission or by delivering it by hand to the address for the time being of the addressee.
17.3 Any such notice sent by
a. post shall be deemed to have been served seven (7) days after despatch.
b. facsimile shall be deemed to have been served at the time of receipt of a positive transmission notice by the sender.
c. e-mail shall be deemed to have been served when received at the destination site or the address advised by recipient to the sender to be its e-mail address.
17.4 In proving service it will be sufficient to prove, a. in the case or a letter, that it was properly stamped, addressed and placed in the post,
b. in the case of a facsimile transmission, that it was fully despatched to a current or facsimile number of the addressee and,
c. in the case o e-mail, that the sender has received a valid message confirmation delivery.
17.5 The Client shall ensure that at all times the Company will be able to communicate with the Client or his appointed representative by telephone, facsimile or email.
17.6 Communications may be made to the Company at the address and telephone number notified to the Client for this purpose and shall be considered to have been duly made only upon their actual receipt by the Company.
17.7 The Client may alter his/her communication details by written notice to the Company.
18.1 The Client relationship shall remain in force until terminated.
18.2 Either party has the right to terminate cooperation immediately by giving written notice to the other. Termination will not affect any accrued rights. The Company will provide the notice to the Client on a Durable Medium.
18.3 On termination, the Company shall complete all transactions, which are already in progress, and these Terms shall continue to bind both parties in relation to such transactions. The Company may deduct all amounts due to it before transferring any credit balances to any Account of the Client and it may require to pay any charges incurred in transferring the Client’s investments.
18.4 In case the Client involves the Company directly or indirectly in any type of fraud, the Company reserves the right to reverse all previous transactions which place the Company’s interest and/or any of its Clients interest at risk before terminating cooperation with the respective Client.
19.1 These Terms shall form the entire agreement between the parties governing the provision of the Services. It supersedes all previous agreements between the Client and the Company whether oral or written which relate to the Services.
19.2 The Company reserves the right to amend these Terms at any time by written notice to the Client. Such changes will become effective on the date specified in the notice, which will be at least one week after the Client is notified by circular letter, by email or any other appropriate means, unless any relevant law, regulation, rule or action of any applicable government or regulator requires otherwise.
20. Information Disclosure
By accepting these Terms the Client hereby authorizes the Company to disclose such information relating to the Client as may be required by any law, rule or regulatory authority, including any applicable Market Rules, without prior notice to the Client. Moreover, the Company is entitled to disclose necessary and required information about the Client to third parties to facilitate the transfer of funds from the Client’s credit card.
21. Governing Law and Jurisdiction
21.1 Any complaint or dispute between the parties must be dealt with in accordance with the following dispute resolution procedure. If the complaint or dispute cannot be resolved internally by the Company in accordance with the internal complaints handling procedure set out below, the Client may refer the matter to the approved dispute resolution scheme of which the Company is a member for the purposes of FSP Rules.
21.2 Internal Complaints Handling Procedure shall be handled at the following order: (1) first advise the Client usual contact at the Company’s offices. Then, if the Client’s complaint is not quickly resolved to the Client’s satisfaction, the Client will be advised to refer the matter to our Compliance Manager, in writing, (email@example.com) in order for them to conduct their own investigation. They will investigate the matter fully and provide the Client with a written response.
21.3 The Company is committed to seriously consider the Client’s complaint(s) and to resolve it through the Company internal complaints procedure.
21.4 External Dispute Resolution Scheme – If the Client is unhappy with the decision of our Complaints Manager or the dispute cannot be resolved under the Company internal complaints handling procedure, the Client’s may then formally submit the dispute to the approved dispute resolution scheme of which the Company’s is a member for the purposes of the Financial Service Providers (Registration and Dispute Resolution) Act 2008 for determination in accordance with the rules of that scheme. Their contact details are: Financial Services Complaints Limited, Postal Address: PO Box 5967 Lambton Quay, Wellington 6145, e-mail: firstname.lastname@example.org, telephone: 0800 347257.
21.5 The above internal and external dispute resolution procedures do not apply to money that the Client may owe the Company or where the Client or any related third party harms or about to harm any right of the Company.
22. 3TG FX FINANCIAL LIMITED PARTNERSHIP
22.1.1 In this part:
(a) ‘Administrator’ means an appointee of 3TG FX whose job description adopts the title ‘Administrator’.
(b) ‘AML’ and ‘CFT’ have the meanings set out in Part 2.0.
(c) ‘Beneficial Owner’ means any person fulfilling the criteria set out in clause 5.1
(d) ‘Director’ means any director of the General Partner of 3TG FX.
(e) ‘Eligible Intermediary’ has the meaning set out in clause 4.1
(f) ‘Eligible Intermediary’ means the entity which fulfils the criteria set out in Part 8.0.
(g) ‘3TG FX’ means 3TG FX Financial Limited Partnership.
(h) “Relevant Assets” are assets which are or will be held by the Relevant Entity.
(i) ‘Relevant Legislation’ means any NZ legislation imposing obligations with respect to AML and CFT.
(j) ‘Relevant Entity’ means the entity or trust 3TG FX is instructed by an Eligible Intermediary to form or administer.
(k) ‘Senior Administrator’ means an appointee of 3TG FX whose job description adopts the title ‘Senior Administrator’.
(l) ‘Trust Referee’ means the person fulfilling the criteria set out in clause 4.2(c).
(m) ‘Unauthorized Person’ means any person who has not been specifically authorized by 3TG FX to receive information relevant to the matters dealt with in current policy
22.2.0 Summary of Purpose of the AML/CFT Policy
22.2.1 ‘AML’ Described
‘AML’ is the detection and deterrence of money laundering.
22.2.2 Money Laundering Described
Money laundering is the process by which criminals attempt to conceal the true origin and ownership of the financial proceeds of their criminal activities. If they are successful, they can then maintain control over the proceeds and so provide a legitimate cover for their sources of income. It includes knowing or reckless assistance by another in the process.
Staff may be advising or dealing with Relevant Entities who appear to be running perfectly respectable businesses but are not. This means that all Staff must, if they are to avoid substantial penalties (usually including criminal), be on the alert. Staff who recklessly assists criminals to conceal the origin of the proceeds of their criminal activities could be convicted of money laundering.
22.2.3 ‘CFT’ Described
‘CFT’ is the detection and deterrence of the financing of terrorism. Terrorism occurs where the relevant action or intended action is a ‘Terrorist Act’ as defined by s5 Terrorism Suppression Act 202 attached as Appendix I.
22.2.4 The ability of 3TG FX to help detect and deter money laundering and terrorist financing will be determined by the extent to which 3TG FX:
(a) Accurately identifies individuals and other entities for whom it undertakes transactions; and
(b) In relation to suspicious transactions accurately identifies the Assets involved and their beneficial owner(s).
22.3.0 3TG FX’s consequent AML/CFT Risk Assessment
22.3.1 The 3TG FX AML/CFT Risk Assessment has been prepared to meet 3TG FX’s relevant statutory obligation. It sets out the relevant generic risks 3TG FX incurs consequent on its commercial activities. It is as follows:
22.3.2 3TG FXAML/CFT Risk Assessment
(i) Identify the nature, size and complexity of the business:
Providing foreign exchange trading services to traders through intermediaries and in its own right. The business has [?] clients and an annual turnover of approximately [$]. The business is complex because it is multidisciplinary and international. The business therefore falls under the supervision of the Department of Internal Affairs for AML/CFT purposes.
(ii) What are the products and services we offer:
Spot foreign exchange-, Contract for Difference (CFD)-, Exchange Traded Fund trading;
(iii) What are the methods by which we deliver products and services to our customers:
Digital delivery by way of emails and registrations, and digital trading platforms.
(iv) What are the types of customers we deal with:
Professional intermediaries and end-users based in New Zealand and overseas.
(v) What are the countries we deal with and the institutions we deal with:
• South East Asia
• China intermediaries
• South America End user client companies
• European Continent
(vi) How we will ensure that our assessment remains current:
To be reviewed on 1 June each year; and
To be reviewed if any of the elements set out in the Risk Assessment alter significantly.
(vii) Key risk areas:
• Reputational risk arising out of taking on business from “problematic” jurisdictions and persons.
• Allowing money laundering and terrorist financing to occur through inadequate identification processes utilised by intermediaries and ourselves.
• Allowing money laundering to occur through not properly identifying source of funds.
This risk assessment and AML/CFT policy shall be audited every two years, the first such audit to occur as at 1 July 2015. The date of the required audits shall be entered into the electronic diary of the Supervisor.
22.4.0 Identifying who we undertake transactions for
22.4.1 3TG FX undertakes all relevant transactions for Eligible Intermediaries who are providing services to their own clients.
22.4.2 Identifying Eligible Intermediary Client and Beneficial Owners
(a) There are four basic AML/CFT requirements:
(i) Eligible Intermediary Client and Beneficial Owners information;
(ii) Proof of identity;
(iii) Proof of residential address; and
(iv) Source of funds evidence.
It is important to note that one document must be produced as proof of identity and another as proof of residential address (i.e. one document cannot meet both requirements).
Requirement One – Intermediary Client and Beneficial Owners Information
(a) The following is the mandatory minimum:
(i) Full name and any aliases, along with an explanation as to why an alias is used;
(ii) Correct current permanent home address and postcode;
(iii) Date of birth;
(iv) Place of birth;
(vii) If the person is not the Intermediary Client, the person’s relationship to the Intermediary Client;
(viii) Company identifier or registration number;
(ix) The nature of the proposed business;
(x) Source of Relevant Assets;
(xi) Beneficial Ownership of Relevant Assets.
Requirement Two – Certified Proof of Identity
(b) Original certified copies of the following is required in order to conduct documentary verification of a Client’s name and date of birth:
1. One form of the following primary photographic identification:
(i) Current valid New Zealand passport;
(ii) New Zealand certificate of identity issued under the Passports Act 1992;
(iii) New Zealand certificate of identity issued under the Immigration New Zealand Operational Manual;
(iv) New Zealand refugee travel document issued under the Passports Act 1992;
(v) Emergency travel document issued under the Passports Act 1992;
(vi) New Zealand firearms licence;
(vii) Overseas passport or similar document issued for the purposes of international travel which:
• Contains the name, date of birth, a photograph and the signature of the person in whose name the document is issued; and
• Is issued by a foreign government, the United Nations or an agency of the United Nations.
(viii) A national identity card issued for the purpose of identification, that:\
• Contains the name, date of birth, a photograph and the signature of the person in whose name the document is issued; and
• Is issued by a foreign government, the United Nations or an agency of the United Nations.
2 A certified original copy of one of the following primary non-photographic identification:
(i) New Zealand full birth certificate;
(ii) Certificate of New Zealand citizenship issued under the Citizenship Act 1977;
(iii) A citizenship certificate issued by a foreign government;
(iv) A birth certificate issued by a foreign government, the United Nations or an agency of the United Nations;
in combination with an original certified copy of a secondary or supporting form of photographic identification, for example:
(v) New Zealand driver licence;
(vi) 18+ Card;
(vii) Valid and current international driving permit.
Clauses (v) – (vii) are not an exhaustive list of secondary or supporting forms of photographic identification that may be acceptable. The Authorised Person and Supervisor must ensure they are satisfied that any secondary or supporting photographic identification they accept is issued by an independent and reliable source.
3 A New Zealand driver licence, together with one of the following:
(i) Confirmation that the information presented on the driver licence is consistent with records held in the National Register of driver licences;
(ii) Confirmation that the identity information presented on the New Zealand driver licence is consistent with the records held by a reliable and independent source (e.g. the information recorded by the Department of Internal Affairs);
(iii) A document issued by a registered bank that contains the person’s name and signature (e.g. a credit card, debit card or eftpos card);
(iv) A bank statement issued by a registered bank to the person in the 12 months immediately preceding the date of the application;
(v) A document issued by a government agency that contains the person’s name and signature (e.g. a SuperGold Card);
(vi) A statement issued by a government agency to the person in the 12 months immediately preceding the date of the application (e.g. a statement from the IRD).
In all instances where documentary verification is being used, we should verify the subject face to face or by copies of documents provided that these are certified by a trusted referee in accordance with clause 5.2(d).
The photograph on the certified copy must be clear. If a document proving identity is not in a language or a script that Staff can understand, such documents must be translated.
The staff member must check the person’s details against 3TG FX Client records, to ensure that no other person has presented the same identity information or documents.
If the subject is unable to satisfy the requirements in 1 – 3 above work will not be carried out for the Eligible Intermediary in relation to the subject.
Certification of Proof of Identity
(c) The proof of identity must be certified and the certification must show an original signature. The Trusted Referee certifying the proof of identity must have sight of the original proof of identity and certify the copy in the presence of the individual concerned.
The certification must include a statement to the effect that the documents provided are a true copy and represent the identity of the named individual and must include the name, occupation and signature of the Trusted Referee and the date of certification. Certification must have been carried out in the three months preceding the presentation of the copied documents.
If the certification of a document proving identity is not in a language or a script that Staff can understand, such documents must be translated.
If the subject posts their original passport to an office for certification, Staff must not certify the passport as a true likeness. Certification should take the following form:
“Having seen the individual and the identification documentation at the same time, I certify this is a true copy of the original and that the photograph is a reasonable likeness.
The following classes of people are authorised to certify proof of identity as the Trusted Referee:
(i) Commonwealth representative;
(ii) An employee of the Police who holds office of constable;
(iii) Justice of the Peace;
(iv) Registered medical doctor;
(vi) Registered teacher;
(vii) Minister of religion;
(ix) Notary Public;
(x) New Zealand Honorary consul
(xi) Member of Parliament;
(xii) Chartered Accountant.
The Trusted Referee must not be:
(i) Under 16 years of age;
(ii) Related to the subject;
(iii) The spouse or partner of the subject; or
(iv) A person who lives at the same address as the subject.
Requirement Three – Original Proof of Residential Address
(d) This means one of the following:
(i) A recent original bank statement or an original credit card statement from a recognised bank showing the usual home address;
(ii) A recent original utility bill showing the usual home address;
(iii) A recent original reference letter from a “respected professional” who knows the subject confirming the usual home address. This may be addressed “to whom it may concern”;
(iv) An original certified copy of a current Central European, Eastern European or Israeli National Identity Card or a Russian Internal Passport showing a photograph and home address certified in a similar manner to a proof of identity;
(v) A recent original letter from an employer of substance (on headed paper) confirming the home address. This may be addressed “to whom it may concern”. This form of verification is useful, for example, for expatriates on short-term contracts;
(vi) Original bank reference from a senior authorised officer of a reputable and recognised bank verifying the residential address. This may be addressed “to whom it may concern”. This is a verification of last resort;
The verification documents provided must be no more than three months old.
If a document providing proof of residential address is not in a language or a script that staff can understand, such documents must be translated.
Requirement Four – documentation evidencing source of funds
(e) The subject must identify details of the immediate transaction which resulted in the production of the funds which will be dealt with. For example:
(i) Bank statement;
(ii) Loan agreement;
(iii) Sale and purchase agreement.
(g) In relation to corporate subjects, we must obtain:
(i) When available, the latest available accounts;
(ii) Certified copy of Certificate of Incorporation or equivalent;
(iii) Details of the registered office and place of business;
(iv) When available, Certificate of Good Standing issued by the Statutory Registry of the country of incorporation of the Corporate or equivalent, proving that a Corporate is in good standing and continues to exist;
(v) When available, Certificate of Incumbency or equivalent, proving the appointment of the directors or the results of a company search;
(vi) A copy of the Board Resolution authorising the Corporate officers to establish a Relevant Entity showing who is authorised to issue requests;
(vii) Copies of Powers of Attorney, or any other authorities, affecting the operation of the proposed Relevant Entity given by the directors in relation to it;
(viii) Details of the nature of the proposed business and the reason for the Relevant Entity being established;
(ix) Proof of identity for all persons authorised by Board Resolutions or Powers of Attorney to issue requests;
(x) If these documents are not in a language or a script that we can understand, such documents must be translated.
Proof of identity for Individuals Connected with Corporate
a. When corporate subjects are tightly owned and controlled private companies or tax haven companies, we must obtain proof of identity on all beneficial owners, shareholders and directors;
b. If the corporate subject has numerous shareholders, procedures for the identification of beneficial owners should be tailored with common sense. When appropriate and when possible, a list of shareholders should be obtained;
c. If the corporate subject has numerous directors, we must obtain proof of identity for each of its director.
Electronic Identity Verification
(h) In order to conduct electronic verification of a subject’s name and date of birth, we must:
(i) Verify the name from at least two reliable and independent electronic sources;
(ii) Verify the date of birth from at least one reliable and independent electronic source;
(iii) Verify the address from at least one reliable and independent electronic source.
(i) When determining what type of electronic sources will be considered reliable and independent, we must have regard to:
(ii) Accuracy – how up-to-date is the information and what are the error rates and matching parameters?
(iv) Privacy (including whether the management and provision of the information is consistent with the principles of the Privacy Act 1993);
(v) Method of information collection;
(vi) Whether the electronic source has incorporated a mechanism to determine the customer can be linked to the claimed identity;
(vii) Whether the information is maintained by a government body or pursuant to legislation; and
(viii) Whether the information has been additionally verified from another reliable and independent source.
(j) The forms of electronic identity verification methods that are considered reliable and independent and the circumstances they will be used for the purposes of identity verification are as follows:
The used methods have regard to the matters described in clause 5.2 above.
Additional methods that will be used to supplement electronic identity verification or otherwise mitigate any deficiencies in the verification process are as follows:
Minimum Documentation Requirement
Subject to this Part A, before proceeding with client instructions, the following minimum proof of identity documentation needs to be obtained.
(a) For Eligible Intermediary Clients who are individuals establishing a trading relationship:
(i) procure from third parties (for each settlor and/or beneficiaries to whom funds are being distributed):
• Identity verification in accordance with clause 6.2 of this manual;
• Original or certified copy of verification of address in accordance with clause 6.2 of this manual;
• Where possible an original or certified copy of a professional reference from bank, lawyer or accountant.
(ii) KYC360 (https://tools.kyc360.com/riskscreen/) and World Check (http://www.world-check.com/) database checks are carried out on each client and search results printed.
Once the documentation above has been received:
(b) All proof of identity documentation listed in (a) above is collated, where relevant, with an Acceptance of Business Form at the front of the documents. The Acceptance form and attached documents are given to the Supervisor to check and, if approved, the Supervisor signs the Acceptance form and refers it to another 3TG FX Director for second approval.
(c) Once signed, the Director returns the Acceptance form and documents to the Administrator who scans the form and documents and saves the file under the relevant 3TG FX project in the “KYC” folder.
(d) 3TG FX carries out further identity verification check in accordance with clause 5.2 above each year on the anniversary date.
5.0 Identifying Beneficial Owner(s)
5.1 We must establish and verify the identity of beneficial owners of the Relevant Entity and the Eligible Intermediaries Client (the ‘Subjects’). For present purposes, the Beneficial Owner is defined as the individual who:
(i) Has effective control of the Relevant Entity conducted; or
(ii) Owns a prescribed threshold of the Relevant Entity.
The Beneficial Owner can only be an individual, not a company or organisation. There may be more than one beneficial owner and we must identify and verify the identity of all the Beneficial Owners of the Subjects.
If the Relevant Person is an individual, we can treat that person as the beneficial owner unless there are reasonable grounds to make us suspect that they are acting on behalf of another. If the Relevant Person is acting on behalf of another person, we will need to establish that other person’s identity and that they are the Beneficial Owner of the Subjects.
22.5.2 The Test to Identify Beneficial Ownership
(i) Each time we apply the test of beneficial ownership we apply three elements. These elements are:
a. Who owns more than 25 percent of the Subjects;
b. Who has effective control of the Subjects; and
c. The persons on whose behalf a transaction is conducted.
A Beneficial Owner is an individual who satisfies any one element, or any combination of the three elements.
(ii) We must determine who owns more than 25 percent of the Subject and who has effective control of it, and also those persons on whose behalf a transaction is conducted. The beneficial owner(s) of the Subjects will be those entities who come within any one or more of these three elements.
(iii) Where the person identified under f(ii) above is not an individual then the same process as there set out will need to be adopted and repeated as many times is necessary to identify the individual(s) who is/are the ultimate Beneficial Owner(s) of the Subjects.
(iv) When there are complex ownership layers and no reasonable explanation for them we should consider the possibility that the structure is being used to hide the Beneficial Owner(s).
(v) If we do not identify and verify the identity of the Beneficial Owner(s), full due diligence has not been completed and we must not establish a business relationship or conduct any transaction for the Eligible Intermediary Client.
(vi) Once we have identified the Beneficial Owner(s) we have to take reasonable steps to verify the information we relied on to do so.
(i) We will need to understand the ownership structure of the subject. It is possible for ownership to be split into parcels of 25 percent or less, but relationships between the parties may give an individual aggregated ownership of the Subject that amounts to more than 25 percent.
Diagram 1 – Ownership
X Company is directly owned by an individual , Mr Smith, who owns 75% and Y Company which owns 25% and is owned equally by two individuals – Mrs Jones and Mr Winston. Establish that this ownership structure is correct. You identify and verify the identity of the individuals who own more than 25% of X Company. In this case, only Mr Smith owns more than 25% of the Subject.
Diagram 2 – Complex Ownership
Ownership of less than 25% of the Subject
Ownership of less than 25% of the Subject
X Company has five direct owners each owning an equal amount. Establish that this ownership structure is correct. Two of the five direct owners (D Company and E Company) are wholly owned by Mr Smith. Identify and verify the identity of Mr Smith as only he owns more than 25% of the Subject.
22.5.3 Effective Control
An example of effective control is an individual who exercises responsibility for senior management decisions, or similar, of the Subject. Acting on behalf of the Subject is not of itself effective control of the Subject.
(ix) In deciding the effective controller(s) in relation to a Subject, we need to consider:
• Those individuals with the ability to control Subject and/or dismiss or appoint those in senior management positions
• Those individuals holding more than 25 percent of the Subject’s voting rights
• Those individuals (for example, the CEO) who hold senior management positions
• Trustees (where applicable).
22.5.5 Person on Whose Behalf a Transaction is Conducted
(ii) Another part of the definition of Beneficial Owner is a person on whose behalf a transaction is being conducted. This may be the individual who is a Customer of the Subject. This concept is important when considering the relationship between the Subject and its relevant clients. An example is, if a reporting entity knows that someone (person A) is conducting an occasional transaction on behalf of another person (person B), then person A and person B should be identified and verified along with any other beneficial owners.
22.5.6 Acting on Behalf of a Subject
Acting on behalf of the Subject is when a person is authorised to carry out transactions or other activities on behalf of the Subject. ‘Authority to act’ should not be confused with effective control, i.e. it does not constitute beneficial ownership.
An example is where a Subject has one or more individuals who have authority to sign on accounts or authorise the transfer, sale or purchase of assets owned by the Subject.
(xii) Subject acting on behalf of another
In some instances, funds from an unidentified third party entering and then exiting an account may be reasonable ground to suspect that a Subject is acting on behalf of another. This would require analysis of who the Beneficial Owner of the funds was.
22.5.8 Applying a Risk-based Approach
(xiii) We should adopt a risk-based approach to how we verify Beneficial Ownership of the Subject. Identifying Beneficial Ownership is an obligation that must be satisfied, regardless of the level of risk associated with that Subject. However, when deciding what reasonable steps to take to satisfy us that identity and relevant information is correct, we may vary our approach depending on our risk assessment of the Subject. The process for assessing risk and deciding how to identify and verify beneficial ownership is set out at 5(f).
22.5.9 Sometimes trusts and corporates are used to launder money through an account whose signatories are not trustees, directors, managers or employees. In such circumstances, we must exercise caution, making sure to verify the identity of account signatories, and where appropriate, monitoring the ongoing business relationship more closely.
22.6.0 Unacceptable Eligible Intermediary Client, Relevant Entities and Beneficial Owners
22.6.1 This section applies to both new and existing Relevant Entities and Eligible Intermediary Clients. If any Staff discover or suspect that any of these could fall within any of the categories set out in paragraphs 6.2 to 6.6 below, they must refer that to the Supervisor. We must not accept or continue to provide services to anyone who undertakes or seeks to undertake any form of activity which is illegal.
22.6.2 High risk Relevant Entities, Eligible Intermediary Clientsand Beneficial Owners are those who:
(a) Seek to utilise or otherwise use company names containing the following words (including similar words and their foreign language equivalent): Royal, Brokerage, Trust, Fiduciary, Bank, Building Society, Savings, Loans, Insurance, Assurance, Re-Insurance, Fund Management, Investment Fund, University, Municipal or Government.
(b) Seek to utilise or using company names that suggest that a company is:
• Something considerably larger than it is;
• Part of a well-known company or group of companies;
• Some kind of financial institution;
• Connected in some way to a government body, political party or a ruling family;
• Undertaking an activity that would normally require licensing or other form of permission;
• Associated in some way with us or our employees.
22.6.3 Unless an exception is granted, those who seek to solicit funds from the public, offer investment advice, provide financial management services to the public or undertake insurance business are not acceptable.
22.6.4 Persons resident in a country subject to any Embargo, Order or Restriction imposed by the United Nations are not acceptable.
22.6.5 The following are unacceptable:
(a) Persons who backdate documents and contracts;
(i) Persons who forge signatures or seals on documents;
(ii) Undischarged bankrupts, disqualified directors etc;
(iii) Struck off accountants, lawyers, IFA, stockbrokers etc;
(b) Persons prohibited under the laws of any country because of being a minor or otherwise disqualified from being a party to a contract;
(c) Persons who have been imprisoned or found guilty of any criminal offence (other than a motoring offence);
(d) Persons who have been proven to act in a fraudulent or dishonest manner in any civil proceedings.
(e) Persons subject to a judicial or other official enquiry.
(f) Persons seeking to avoid liabilities to creditors or breach restrictive covenants or other contractual obligations;
Persons involved with high profile court cases;
(g) Persons who are employed by tax authorities or regulatory bodies;
(h) Carry out unacceptable activities as set out in clause 6.6
22.6.6 The following are unacceptable activities:
(a) Trading in arms, weapons or munitions;
(b) Mercenary or contract soldiering and other similar activities, such as the provision of “bodyguard” or so-called “security services”;
(c) Use of security equipment such as stun guns, electrical restraining devices, CS gas, pepper sprays and other devices or materials that could lead to the abuse of Human Rights or be utilised for torture;
(d) Use of technical surveillance equipment (i.e. “bugging” or surveillance equipment);
(e) Industrial espionage;
(f) Involvement with hazardous chemicals, biological matter or nuclear materials including the disposal of toxic waste and the sea dumping of such materials;
(g) Involvement with human or animal organs destined for medical purposes (including transplant organs);
(h) Involvement with genetic material such as human foetuses or similar material;
(i) Involvement with adoption agencies, including surrogate motherhood;
(j) Activities leading to the abuse of refugees;
(k) Establishing universities or colleges to provide so-called degrees or qualifications;
(l) The provision of credit cards;
(m) Pyramid sales and pyramid schemes disguised as multi-level marketing schemes;
(n) Advance fees for loans;
(o) Timeshare and holiday clubs, property bond or other similar businesses;
(p) Unregulated gambling;
(q) Other illegal, immoral or unethical activities;
(r) Activities that might be regarded as being likely to damage our reputation.
22.7.0 Suspicious Matters
Suspicious Matters are summarised below but refer also to Part 3.0.
22.7.1 Business Logic and Trading Activities
(a) The acquisition of companies for no obvious commercial reason;
(b) Companies that continually make losses for no obvious purpose;
(c) Complex structures without a cause;
(d) Person offering or making rates of return higher or lower than market rates;
(e) Persons making profits on goods or services higher or lower than market rates.
22.7.2 Concealment, Lack of Explanation and Paranoia about Confidentiality
(a) Any attempt to obscure the identity of Beneficial Owners;
(b) Excessive interest in secrecy, confidentiality or the application of mutual legal aid treaties or exchange of information provisions in tax treaties;
(c) Refusal to disclose full details of activities;
(d) Unwillingness to disclose source of funds;
(e) Attempts to conceal transactions between related parties.
22.7.3 Changes and Complexity
(a) Frequent requests for powers of attorney;
(b) Frequent changes of beneficial ownership, share structure, directors, account signatories, banking arrangements etc;
(c) Requests for more than ten share certificates;
(d) Requests for mail forwarding services from more than two locations;
(e) Requests for unusually high-authorised share capital.
22.7.4 Client Accounting
(a) Unwillingness to provide evidence to support the preparation of accounts;
(b) Poorly fabricated evidence to support accounts;
(c) Loans/borrowings between companies that are later written off or deferred;
(d) Requests to confirm the existence of non-existent assets or liabilities (particularly loans).
22.7.5 Banking Matters
(a) Unexplained transfer of significant sums through several bank accounts;
(b) Unusual cash payments or cash transactions;
(c) Establishing banking relationships with more than two banks;
(d) Failure to provide copy bank statements.
22.8.1 Professional Intermediaries such as banks, accountancy, legal firms and other Offices often introduce business to us.
22.8.2 Eligible Intermediaries
(a) The Supervisor must obtain proof of identity for an Eligible Intermediary in accordance with this manual and may require Staff to obtain additional due diligence and impose such other conditions on such arrangements as shall be appropriate;
(b) If Eligible Intermediary Status is granted, the Supervisor shall record the decision in writing and maintain a register of Eligible Intermediaries containing:
(ii) Paperwork relating to the granting of this status and the decision making process;
(iii) Letters acknowledging acceptance by the Eligible Intermediaries of any conditions imposed upon the Eligible Intermediary.
(c) The Supervisor must ensure Eligible Intermediary status is reviewed annually and ensure that records relating to reviews are maintained. The Senior Administrator shall ensure that all the Staff are aware of the identity of all Eligible Intermediaries;
(d) If an intermediary is granted Eligible Intermediaries status, Staff can obtain full proof of identity for an Eligible Intermediary Client from the Eligible Intermediary. However, they must note that:
(ii) We are also required to know the identity of the Beneficial Owners of Relevant Entities and the relevant Eligible Intermediary Clients;
(iii) Eligible Intermediaries must provide us with copies of proof of identity of their relevant clients upon request. These copies may be emailed or faxed.
(e) The Supervisor shall check all intermediaries in World-Check and KYC360 databases to verify if there is any further fact or circumstance that should be considered when granting Eligible Intermediary status.
22.9.1 Monitoring requires the acquisition and analysis of information required to fulfill 3TG FX’s obligations in relation to AML and CFT. There are three types of monitoring i.e.:
(a) Consequent on a Suspicious Matter Report (dealt with at clause 10.7.
(b) Routine monitoring.
(c) Monitoring by 3TG FX Directors.
Routine Monitoring requires the following information to be checked every 12 months [?]
• Identity Verification(s)
• Beneficial Ownership
The Routine Monitoring Checklist attached marked [?] will be completed and filed.
23. Miscellaneous Provisions
23.1 If at any time, any provision of the Terms is or becomes illegal, invalid, or unenforceable in any respect under the law of any jurisdiction, neither the legality, validity or enforceability of the remaining provisions of these Terms under the law of that jurisdiction nor the legality, validity or enforceability of such provision under the law of any other jurisdiction shall be in any way affected.
23.2 The Company shall not be liable to the Client for any failure, hindrance or delay in performing its obligations under these Terms where such failure, hindrance or delay arises directly or indirectly from circumstances beyond its reasonable control. Such force majeure events shall include without limitation any technical difficulties such as telecommunications failures or disruptions, non–availability of the Company’s Website e.g. due to maintenance downtime, declared or imminent war, revolt, civil unrest, catastrophes of nature, statutory provisions, measures taken by authorities, strikes, lock–outs, boycotts, or blockades, notwithstanding that the Company is a party to the conflict and including cases where only part of the Company’s functions are affected by such events.
23.3 No delay or omission on the part of the Company in exercising any right, power or remedy provided by law or these Terms, or partial of defective exercise thereof, shall:
a. Impair or prevent further or other exercise of such right, power or remedy; or
b. Operate as a waiver of such right, power or remedy.
23.4 No waiver of any breach of any term under these Terms shall (unless expressly agreed in writing by the waiving party) be construed as a waiver of a future breach.
23.5 The Client is not entitled to assign and or transfer any of its rights or delegate any of the Client’s obligations under the Terms to any person, whereas the Company may assign its rights or delegate its obligations to any publicly regulated financial institution
23.6 When making any recommendations to the Client, the Company will assume that the Client is in a position to judge the suitability of any advice given.
23.7 If the Company effects a transaction with or for the Client this shall not be taken to mean that the Company recommends or concurs on the merits of the transaction or that the transaction is suitable for the Client.