1. DEFINITIONS AND INTERPRETATION
1.1 Definitions: In this agreement, unless the context otherwise requires:
Business Day means a day (other than a Saturday or Sunday) on which registered banks are customarily open for business in Auckland and Wellington.
FX Services means foreign exchange services and products provided by JD Capital and any of JD Capital’s Related Companies from time to time.
New Client means a client who, at the time of referral to JD Capital by the Broker, does not already have an existing relationship with JD Capital.
Related Company shall have the same meaning as contained in section 2(3) of the Companies Act 1993.
Warranties means the warranties given by the Broker in clause 6.
1.2 Interpretation: In this agreement, unless the context otherwise requires:
a) headings are inserted for convenience only and shall be ignored in construing this agreement;
b) the singular includes the plural and vice versa;
c) references to individuals include companies and other corporations and vice versa;
d) a reference to any legislation or to any provision of any legislation (including regulations and orders) includes that legislation or provision as from time to time amended, re-enacted or substituted and any statutory instruments, regulations and orders issued under any such legislation or provision;
e) a reference to a party, person or entity includes:
i. an individual, partnership, firm, company, corporation, association, trust, estate, state or agency of a state, government or government department or agency, municipal or local authority and any other entity, whether or not incorporated and whether or not having a separate legal personality; and
ii. an employee, agent, successor, permitted assign, executor, administrator and other representative of such party, person or entity;
f) a reference to monetary amounts, money or money’s worth are to New Zealand dollars unless in each case specifically stated otherwise;
g) the annexures to this agreement form part of this agreement;
h) a reference to anything of a particular nature following upon a general statement shall not in any way derogate from, or limit the application of, the general statement, unless the particular context requires such derogation or limitation.
2. NEW CLIENT REFERRAL
2.1 New Client referral: The Broker agrees to refer New Clients requiring foreign exchange services or products to JD Capital subject to the provisions of this agreement.
a) The Broker acknowledges and agrees that once a New Client has been referred to JD Capital, JD Capital may communicate with that New Client directly, for any purpose whatsoever, including (without limitation) for the purpose of marketing or the provision of FX Services.
b) JD Capital shall not be obliged to provide any information to the Broker about any FX Services provided to any New Client.
c) The new client must open an account with JD Capital and meet all standard client terms and conditions including all Know Your Client (KYC) requirements. JD Capital will be responsible for Anti-Money laundering (AML) and Counter Terrorisms Financing (CTF) requirements for any clients introduced by the Broker.
d) JD Capital reserves the right to reject potential clients introduced by the Broker if it deems those clients do not meet the legal or compliance requirements or deems this not to be in the interest of JD Capital.
2.2 Term: This agreement shall continue until terminated:
a) by the Broker by not less than 40 Business Days prior written notice to JD Capital; or
b) by JD Capital by not less than 40 Business Days written notice to the Broker.
2.3 Effect of termination: On the expiration of any notice given pursuant to clause 2.2, this agreement will terminate and, subject to clause 2.3, be of no further effect, and neither party shall have any claim against the other arising under or in connection with this agreement except insofar as such claim arose prior to the date of termination.
2.4 Prior claims and survival: Notwithstanding termination:
a) JD Capital shall remain liable to pay Remuneration which became payable pursuant to section 3 prior to termination; and
b) the provisions of clauses 7.1, 8.1 and 10.5 shall survive and continue in full force and effect.
2.5 Client status: JD Capital may provide or continue to provide FX Services to any New Client referred to it by the Broker notwithstanding termination of this agreement.
3.1 Remuneration: If the Broker refers a New Client to JD Capital and JD Capital provides FX Services to that New Client, then the Broker will be remunerated on the basis set out in the Schedule 1 (Remuneration). JD Capital will make the payment to the Broker’s initial bank account listed in the part 3 of Schedule 1. No Remuneration will be paid to the Broker if JD Capital does not provide FX Services to that New Client.
3.2 Remuneration is GST inclusive: All Remuneration payable to the Broker in accordance with this agreement is inclusive of New Zealand Goods and Service Tax (GST) (if any).
3.3 Same client referral by different brokers: Remuneration will only be paid to one broker for each New Client. If two brokers refer the same New Client to JD Capital, only the first broker to do so will be remunerated. JD Capital’s decision as to which broker is to be remunerated will be final and conclusive.
3.4 Amendment of Remuneration payable: The Broker agrees that JD Capital may amend the Remuneration payable to the Broker at any time and in its absolute discretion. Any such change to the Remuneration payable will be notified to the Broker in writing and will be effective:
a) in respect of each New Client referred to JD Capital by the Broker after the period ending 5 Business Days after the notification of the change is given to the Broker; and
b) If applicable, in respect of any further FX Services provided to a New Client which was referred by the Broker prior to notification of the change, after the period ending 5 Business Days after the notification of the change is given to the Broker.
3.5 Payment of remuneration: JD Capital shall pay the Remuneration to the Broker monthly in arrears. The payment date for the relevant month shall be 10 Business Days after the beginning of the following month. JD Capital’s determination of the amount of Remuneration payable to the Broker will be final and conclusive in the absence of manifest error.
4. NO OBLIGATION TO PROVIDE FX SERVICES
4.1 No obligation: The Broker acknowledges and agrees that JD Capital is under no obligation whatsoever to:
a) provide or to continue to provide FX Services to any New Client referred to it by the Broker; or
b) continue to provide all or any particular FX Services.
5. BROKER ACCOUNTS
5.1 New Clients with existing Broker accounts: If a New Client has an existing account with the Broker which is a facility within the meaning of the Financial Transactions Reporting Act 1996 (FTRA) and which is used by that New Client and the Broker in connection with the provision by JD Capital of FX Services to the New Client, the Broker shall, if requested by JD Capital, take all necessary steps to assist JD Capital to confirm the existence of the Broker’s account in accordance with the FTRA.
6. WARRANTIES BY BROKER
6.1 Warranties: The Broker represents and warrants to JD Capital as follows:
a) The Broker will comply in all respects with the relevant provisions of the following legislation and will, at the time a New Client is referred to JD Capital, have:
i. taken all steps necessary under the FTRA to verify the New Client’s identity;
ii. complied with all relevant disclosure obligations contained within the Securities Markets Act 1988;
iii. been authorised by that New Client to disclose that New Client’s personal information to JD Capital under the Privacy Act 1993; and
iv. advised that New Client that the Broker will be paid Remuneration for referring that New Client to JD Capital.
b) The Broker will comply in all respects with all other applicable statutes, regulations or orders in New Zealand which are required to be complied with by the Broker in relation to New Clients referred to JD Capital.
c) Where the box in part 2 of the Schedule is ticked, the Broker warrants that it will, prior to the referral of the New Client to JD Capital, advise the New Client that the Broker’s Remuneration will be deducted by JD Capital from the funds provided to JD Capital by the New Client, in addition to any fees charged to the New Client by JD Capital.
7. EXCLUSION OF LIABILITY
7.1 Exclusion of Liability: JD Capital’s only liability to the Broker under this agreement shall be for the payment of Remuneration. All other liability of JD Capital to the Broker arising out of or in connection with this agreement howsoever arising is excluded. In addition, JD Capital shall not be liable for loss of any kind howsoever arising (including as a result of negligence) suffered by the Broker arising out of or in connection with the provision by JD Capital of FX Services to New Clients.
8.1 Indemnity from Broker: Without limiting any rights or remedies of JD Capital, the Broker indemnifies JD Capital against:
a) all losses, damages, costs and expenses suffered or incurred by JD Capital; and
b) all claims or demands made against JD Capital,
arising out of any breach or non-fulfilment of any of the Warranties or any of the obligations of the Broker under this agreement.
9.1 Methods of giving notice: Each notice or other communication to be made or delivered to a party under this agreement shall be:
a) in writing; and
b) delivered to such party by actual physical delivery or facsimile or email at the address or facsimile number or email address, and marked for the attention of the person (if any), from time to time designated by such party to the other for the purposes of this agreement.
9.2 Deemed receipt: Notices shall be deemed to have been received by the party to whom the notice is addressed:
a) if delivered by hand, upon delivery;
b) if sent by post, five Business Days after, but not including, the day of posting; and
c) if sent by facsimile or email on completion of transmission to the relevant facsimile number or email address (as appropriate) provided that if such transmission is made or completed at a time outside the ordinary business hours of the addressee, at the opening of business on the next Business Day.
9.3 Initial address details: The initial facsimile number, email address, address and person so designated by the parties are set out in part 2 of the Schedule 1.
10.1 Waiver: No delay, grant of time, release, compromise, forbearance (whether partial or otherwise) or other indulgence by one party in respect of any breach of the other party’s obligations under this agreement shall:
a) operate as a waiver of, or prevent the subsequent enforcement of, that obligation; or
b) be deemed a delay, grant of time, release, compromise, forbearance (whether partial or otherwise) or other indulgence, in respect of, or a waiver of, any subsequent or other breach.
10.2 Partial invalidity: If any term or provision in this agreement is held to be illegal or unenforceable, in whole or in part, under any enactment or rule of law, such term or provision or part shall, to that extent, be deemed not to form part of this agreement and the enforceability of the remainder of this agreement shall not be affected.
10.3 Amendments: Except as expressly otherwise provided in this agreement, all amendments or variations to this agreement shall be in writing signed by each of the parties.
10.4 Counterparts: This agreement may be executed in any number of counterparts (including facsimile copies) and provided each of the parties has executed a counterpart, the counterparts taken together shall constitute a binding and enforceable agreement between the parties.
10.5 Confidentiality: Except as required by law, each party shall at all times keep confidential, treat as privileged, and not directly or indirectly make or allow any disclosure or use to be made of:
a) the subject matter of this agreement; or
b) any provision of this agreement or of any information relating to any such provision; or
c) any information directly or indirectly obtained from the other party under or in connection with this agreement except to the extent that the parties otherwise agree in writing and provided that JD Capital may deal with information relating to a New Client as authorised by that New Client.
10.6 Governing law: This agreement shall be governed by, and construed in accordance with, the laws of New Zealand, and each of the parties submits to the exclusive jurisdiction of the Courts of New Zealand in respect of any dispute or proceeding arising out of, or in connection with, this
10.7 Assignment: This Agreement shall be binding upon and inure to the benefit of the parties hereto and their successors and permitted assigns. Neither party may assign its rights or obligations hereunder without the prior written consent of the other party; provided that either Party may, upon notice to the other Party, and without the consent of the other Party, assign this Agreement to any entity which is a wholly owned subsidiary of the Party or in connection with the sale to any third party of all or substantially all of a Party’s business or assets, provided that such assignee agrees in writing to be bound by the terms of this Agreement.