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HAMILTON HINDIN GREENE LIMITED

GENERAL TERMS AND CONDITIONS FOR CLIENT SERVICES

September 2010

PART A: GENERAL provisions

1            General Terms and Conditions apply to all Services

1.1       These General Terms and Conditions apply to all Services that we provide to you, subject only to the terms and conditions of any written supplementary agreement. 

1.2       These General Terms and Conditions comprise:

(a)       Part A – General Provisions;

(b)       Part B – General Trading;

(c)        Part C – Custody Services;

(d)       Part D – Client Assets; and

(e)       Part E - Interpretation.

1.3       Most Services that we provide to you are subject to NZX Rules or, in the case of overseas securities, the rules of any relevant Recognised Securities Exchange.  Accordingly, all Services provided to you are subject to:

(a)       NZX Rules (and the NZX Rules are, to the extent necessary, incorporated into these General Terms and Conditions and Any amendments to the NZX Rules will apply automatically to these General Terms and Conditions without the need for these General Terms and Conditions to be amended);

(b)       relevant New Zealand legislation and industry best practice; and

(c)        any applicable overseas laws or regulations (including the rules and practices of any relevant Recognised Securities Exchange).

1.4       As a HHG client and by using our Services, you unconditionally agree to be bound by:

(a)       these General Terms and Conditions and any amendments to them notified to you in accordance with these General Terms and Conditions;

(b)       NZX Rules and any applicable overseas laws or regulations (including the rules and practices of any relevant Recognised Securities Exchange) to the extent necessary for the provision of, or in respect of, the Services; and

(c)        any applicable supplementary agreement that applies in relation to specific Services.

2            Services provided to Clients by HHG

2.1       HHG has been accredited and approved by NZX as an NZX Advising Firm with the ability to provide investment advice and/or Securities recommendations to clients.

2.2       The Services which HHG currently provides to Clients include, without limitation:

(a)       general investment advice;

(b)       arranging for buying and selling Securities on your behalf;

(c)        the investment of deposits (secured and unsecured) with financial institutions;

(d)       arranging for investments into Initial Public Offerings (“IPOs”) including equity, debt and quasi-debt Securities; and

(e)       investments into managed funds; and

(f)        the OverView™ premium portfolio management and custodial service (“Overview”).

HHG may change the Services it provides to Clients from time to time, including by providing new Services or by ceasing to provide any existing Services (including any of the Services referred to above).

3            Your Account

3.1       We will open an Account in your name on the first occasion we accept instructions to provide you with Services.

3.2       You must take responsibility for any trading through the Account.

3.3       You must pay any amounts owing under the Account immediately.

3.4       The Account must be used only for the provision of Services, on your behalf.

3.5       Only you or your Authorised Person(s) can operate the Account and give us instructions.

4            Authorised Persons

4.1       You may appoint Authorised Persons to operate the Account on your behalf.  If any Authorised Person(s) has completed an agreement for Services on your behalf, you are deemed to have authorised the relevant Authorised Person(s) to act on your behalf in relation to those Services.

4.2       Whenever Authorised Persons operate the Account you warrant to us that:

(a)       the Authorised Persons are authorised on your behalf to give us the instructions that they give us;

(b)       the Authorised Persons shall comply with these General Terms and Conditions;

(c)        the Authorised Persons shall use the Account only on your behalf;

(d)       if the Authorised Persons undertake transactions on behalf of any other Person they shall advise us and ask us to set up another account;

(e)       any details any Authorised Persons give us are correct;

(f)        you will personally indemnify us against any costs or losses of any kind, which we may suffer as a result of any failure by any Authorised Persons to comply with these General Terms and Conditions.

4.3       If you want to change the Authorised Person(s):

(a)       you must give us notice in writing of the changes. The notice must contain an acknowledgement by any new Authorised Person(s) that they have read and understood these General Terms and Conditions;

(b)       you must sign the notice; and

(c)        any new Authorised Persons must sign the notice and complete our identification verification requirements.

4.4       We may continue to act on the instructions of Authorised Persons until we receive written notice from you revoking their appointment.

5            Instructions to operate the Account

5.1       When you give us an instruction to operate the Account (including any instruction given or Order placed to buy or sell any Securities on your behalf), you are representing that you can meet all resulting obligations and commitments.  Failure to settle a contract by the due date may result in charges and other adverse consequences, as set out in clause 4 of Part B.

5.2       Any instruction given to operate the Account may only be given by you or an Authorised Person.  HHG is entitled to rely on any instruction given or any Order placed which appears to have been duly authorised by you or an Authorised Representative, without any enquiry as to the identity or authority of the sender of that instruction or Order, and you will be bound by any such instruction or Order.  Despite this, we may (but are not required to) ask any Person who gives us an instruction or places an Order to confirm their identity and/or their authority to operate the Account.

5.3       Instructions to operate the Account may be given by telephone, in writing, in person, by facsimile (“fax”), or by e-mail which complies with clause 6 of Part A.  If you give us instructions by fax, your fax instructions are deemed to be given when acted upon.

5.4       We may ask any Person who gives us instructions to confirm their identity and/or their authority to operate the Account.

5.5       In giving any instruction or placing any Order, you additionally authorise HHG to pass that instructions or Order to its Agent without undue delay and agree to be bound by that instruction or Order.

5.6       Additional requirements that apply to instructions and/or orders in relation to Custody Securities are set out in Part C.

6            Our E-Mail Policy

6.1       If you give us instructions by e-mail, your instructions must be:

(a)       sent to us from the e-mail address(es) disclosed to us in any agreement for Services; and

(b)       e-mailed to your usual investment advisor.

6.2       E-mail instructions are deemed to be given when acted upon or acknowledged by us.

6.3       If you want to change your e-mail address:

(a)       you must give us notice in writing of the changes; and

(b)       you must sign the notice.

6.4       We may not accept e-mails that do not comply with the above requirements.

7            Payment of our Fees and Charges

7.1       As a HHG client and by using our Services, you agree to pay us on demand all of our fees and charges applicable to the Services provided to you.

7.2       The fees and charges applicable to the Services provided to you will be either:

(a)       the fees and charges agreed in writing in respect of any particular Services, fees or charges; or

(b)       in respect of any other Services, fees and charges which are not subject to any such written agreement, the fees and charges notified by us to you from time to time.  We may notify you of our fees and charges by including those fees and charges in our Disclosure Statement, by posting those fees and charges on our website or by notifying you otherwise in accordance with these General Terms and Conditions.

7.3       Our fees and charges include:

(a)       brokerage and other fees, charges, duties and taxes at the rate or rates notified by us to you from time to time in a Schedule of fees and charges or Disclosure Statement,  or in respect of a particular transaction via the Contract Note you receive;

(b)       any agency fees and other charges incurred in effecting an overseas transaction;

(c)        any charges or penalties imposed by another broker, Agent, or by NZX or other stock exchange including, without limitation, charges or penalties imposed as a result of late or non-delivery of scrip, holder identification particulars or any other information or requirements; and

(d)       if you use General Custody Services:

(i)         custody and sub-custody fees, including other fees, charges, duties and taxes at the rate or rates notified by us to you from time to time either generally or in respect of any particular General Custody Holdings;

(ii)        any fees and other charges incurred in holding any of your General Custody Holdings in custody; and

(iii)       any charges or penalties imposed by another custodian or sub custodian including, without limitation, charges or penalties imposed as a result of late or non-delivery of scrip, holder identification particulars or any other information or requirements; and

(e)       if you use Overview (including the Overview Custodial Service), all fees and other charges for that service.

7.4       We may debit our fees and charges either:

(a)       to the Account (including, without limitation, any of your Client Funds held in the HHG Client Funds Account); or

(b)       to your Online Multi-Currency Account and, for this purpose, you irrevocably authorise us to instruct the Account Issuer to pay any such amount from your Online Multi-Currency Account when instructed to do so by us.

8            Application of funds in your Online Multi-Currency Account

8.1       Without limiting clause 7 above, you irrevocably authorise us to instruct the Account Issuer to debit any amount from your Online Multi-Currency Account when instructed to do so by us for any of the following purposes:

(a)       in reimbursing HHG or the Trading Participant for any amount paid by it in settling the purchase of Securities for you;

(b)       in payment of the sale price for Securities transferred into the Trading Participant’s transfer account by you or by us on your behalf;

(c)        in payment to any other person for whom Client Funds have been held in the HHG Client Funds Account; and

(d)       in payment of, or in reimbursing HHG for payment of, brokerage and other charges properly payable to the Trading Participant in relation to transactions referred to in paragraphs (a) and (b) above.

9            Bank Account

9.1       If you want us to pay any credit balance in the Account to your nominated bank account, you must notify us in writing of a single bank account number to be used for that purpose.  The bank account must be in your name and the bank account number must be confirmed by an encoded deposit slip, copy of a bank statement or by a verification letter provided by your bank.

9.2       If you want to change your bank account details:

(a)       you must give us notice in writing of the changes; and

(b)       you must sign he notice and supply new verification.

10         Privacy Act 1993

10.1     You authorise us to:

(a)       hold personal information about you and any Authorised Person(s) for the purpose of carrying out your instructions, administering the Account, and for our own marketing purposes;

(b)       record all telephone conversations between you and/or any Authorised Person(s) and us;

(c)        record and identify the calling telephone from which you and/or any Authorised Person(s) instruct us;

(d)       disclose information provided by you to the Trading Participant, the Custodian or any other person (including, without limitation, any agent of either the Trading Participant or the Custodian, any financial institution issuing deposits, any Market Participant or other person in relation to an IPO, and any trustee or manager of a managed fund and any Securities Registry) for the purposes of or in connection with the provision of any Services agreed with you;

(e)       disclose information to ANZ National where required for the purposes of setting up and administering your Online Multi-Currency Account;

(f)        disclose information about you and any Authorised Person(s) when required by law or under NZX Rules; and

(g)       obtain credit information concerning you and any Authorised Person(s) if we consider it relevant to determine whether to agree to perform Services or administer the Account, or collect any unpaid balance on the Account for you.

10.2     You are entitled to see, and ask us to correct, any information that we hold about you.

11         Disclaimer

11.1     You agree that where our Services are acquired for business purposes, or where you hold yourself out as acquiring our Services for business purposes, the Consumer Guarantees Act 1993 (“the CGA”) will not apply to any supply of goods or services made under agreement for Services.  Nothing in these General Terms and Conditions shall limit or abrogate your rights and remedies under the CGA except to the extent that contracting out is permitted under the CGA and all provisions of these General Terms and Conditions will be modified to the extent necessary to give effect to that intention.

11.2     In giving investment advice under these General Terms and Conditions, HHG will exercise due skill, care and diligence to ensure its investment advice to you is accurate and current.  It is your responsibility to make enquiries before making a decision to trade any securities.  Neither HHG nor its Agents will have any liability to you in this regard.  When giving advice HHG is only able to act on the basis of information provided by you in determining whether such advice is appropriate to your particular investment needs and financial circumstances. HHG does not guarantee the repayment of capital or the performance of any investments or otherwise make any representation concerning the performance of your investments, your account or any particular Transaction.

11.3     We will not be liable to you for any direct loss you suffer in respect of our Services supplied to you, except where your loss is caused by our gross negligence or wilful default.

11.4     We will not be liable to you for any indirect or consequential loss you suffer in respect to our Services supplied to you.

11.5     You acknowledge that:

(a)       our advice is necessarily based on information provided to us by other people which may not be independently verified by us (“information from third parties”);

(b)       we are entitled to rely on information from third parties and we are under no obligation to verify or investigate that information in any way.  We will not be liable under any circumstances where we rely on information from third parties;

(c)        our Services do not include tax advice.  We recommend that you consult your tax advisor before making a decision to trade in any Securities;

(d)       it is your responsibility to make further enquiries as should reasonably be made before making a decision to trade in any Securities;

(e)       it is your responsibility to provide us with full details on your financial circumstances at the commencement of the relationship and then provide ongoing updates of material changes to your financial circumstances to enable us to accurately assess your investment needs and objectives and your risk profile.  This will enable us to offer appropriate investment advice and securities recommendations.

11.6     We will use all reasonable endeavours to execute your instructions as soon as possible after we accept them, but we will not be liable for any loss or expense which arises as a result of being unable to fulfil your Order (either in whole or part) for any reason whatsoever, or as a result of any change in market conditions or any other event beyond our control between the acceptance of your Orders and the execution.

11.7     We will not be liable for any failure to perform our obligations under these General Terms and Conditions if such failure is caused by any event of force majeure beyond our reasonable control, or the reasonable control of our employees, agents or contractors.  For the purposes of this clause, an event of force majeure includes (without limitation) any inability to communicate with market makers or with other brokers, financial intermediaries or any stock exchange, failure of any computer dealing or settlement system, inability to obtain the necessary supplies for the proper conduct of business, and the actions or failures of any counter party or any other broker or agent, or of the systems of that broker or agent.

11.8     We may from time to time provide stock broking, investment banking, advisory or other services to companies and other entities in whose Securities we may deal on your behalf.  The provision of such services does not affect our obligations to you or any advice provided by us to you and you acknowledge that we may act for both parties or as principal in any Transaction.

11.9     The provisions of this clause 11 shall extend to all our employees, agents and contractors, and to all other entities which may distribute our publications (“related parties”).  The provisions of this clause 11 are for the benefit of, and are intended to be enforceable by, each related party for the purposes of the Contracts (Privity) Act 1982.

11.10  The provisions of this clause 11 are for the benefit of, and are intended to be enforceable by, each related party for the purposes of the Contracts (Privity) Act 1982.

12         Disclosure of Interest

12.1     The Directors of HHG may have a professional interest and/or hold shares in any or all companies recommended by our advisers.

13         Termination

13.1     You or HHG may terminate these General Terms and Conditions by written notice to the other, but without prejudice to any pre-existing rights or obligations of the parties, including, for the avoidance of doubt, completion of any matter to effect and settle a Transaction and payment of any amount due to HHG and/or its Agent on that Transaction.

14         Joint Holders

14.1     All joint Clients are jointly and severally liable under these General Terms and Conditions.  Unless otherwise agreed in writing, we may, but are not required to, action the instructions of any one joint Client.

15         Limitation of Liability of Independent Trustee

15.1     You acknowledge that the Independent Trustee has entered into an agreement for Services with us in his/her/its capacity as a trustee of the relevant trust and that the liability of the Independent Trustee is limited to the assets of that trust.  However, if loss is incurred by us due to an intentional default or the dishonesty (but not negligence) in breach of trust by the Independent Trustee, he/she/it will be liable to us to the extent that trust assets do not satisfy the loss.

16         Indemnity

16.1     You must, on demand being made by us, indemnify us against any and all losses, costs, claims, damages, penalties, fines, expenses and liabilities which we incur or suffer as a result of:

(a)       any breach of these General Terms and Conditions on your part, or on the part of any Authorised Person or on the part of any Person for whom you are responsible in terms of these General Terms and Conditions;

(b)       us relying in good faith on, and implementing instructions given by a Person who is not an Authorised Person, unless there were reasonable grounds for us to doubt the identity or authority of that Person;

(c)        us having to pay any amounts to any other party in relation to any Transaction where you have failed to place us in funds for that Transaction by the due date for payment (including, without limitation, any amounts payable or paid by us to the Trading Participant);

(d)       us having to purchase Securities as a result of you instructing us to sell a greater number of Securities than you in fact own.

17         Amendment, Revocation and Replacement

17.1     We may, in our sole discretion, amend, revoke or replace these General Terms and Conditions.  If we amend, revoke or replace these General Terms and Conditions, notice will be given to you by any medium we may choose.  It is your responsibility to check whether these General Terms and Conditions have been amended, revoked or replaced each time we provide Services to you.

17.2     Any amendment to, or revocation or replacement of, these General Terms and Conditions will be effective immediately and any subsequent use of our Services will constitute an acceptance of the amendment, revocation or replacement.

18         Notices

18.1     Any notice or other communication given by us to you (or vice versa), to the postal address, e-mail address or fax number specified in an agreement for Services and which is sent:

(a)       by fax or by e-mail which complies with clause 6 of Part A, shall be deemed to have been received by the intended recipient on the Working Day on which it is sent (but if sent after 4.00pm it shall be deemed to have been received on the next Working Day);

(b)       by mail in a correctly addressed paid envelope, shall be deemed to have been received by the intended recipient on the 2^nd Working Day after the date on which it is mailed (in the case of mailing within New Zealand) and on the 10^th Working Day after the date which it is mailed (in the case of mailing to or from overseas).

19         Dormant Accounts

19.1     HHG or its Agent(s) will, where funds and/or Securities are owed to you and mail sent by us to you has been returned “Gone No Address”, make every effort to locate you.  Should you not be located the matter will be referred to the Board of HHG for consideration and the funds and/or sale proceeds of the Securities may be disbursed in accordance with the Unclaimed Money Act 1971.

20         Governing Law and Jurisdiction

20.1     These General Terms and Conditions are governed by and construed according to the current laws of New Zealand.  The parties agree to submit to the exclusive jurisdiction of the courts of New Zealand.

PART C: custody services

1            Introduction

1.1       This Part C sets out the terms and conditions on which Custody Services will be provided to you.  This Part C is to be read in conjunction with Part A (as amended from time to time).  In the event of an inconsistency between the terms of Part A and Part C, the terms of this Part C will prevail to the extent of the inconsistency.

2            Custody Services

2.1       Custody Services are:

(a)       the holding of your Securities (“General Custody Holdings”), the collection of income on those Securities and the acting by HHG’s agent(s) upon instructions given by us (as a result of an instruction by you) from time to time in respect of those Securities (“General Custody Services”); and

(b)       the custodial services provided as part of OverView (the “OverView Custody Services”), including the holding of your Securities (“OverView Holdings”) as part of that service.

For the purposes of these General Terms and Conditions, any reference to a “Custody Holdings” is a reference to either General Custody Holdings or to OverView Holdings (as the context may require).

2.2       For this purpose:

(a)       HHG will at all times appoint one or more custodians to hold your Custody Holdings as bare trustee for the General Custody Services (each, a “General Custodian”); and

(b)       a custodian has been appointed to hold your OverView Holdings as bare trustee as part of the contractual arrangements relating to OverView (“OverView Custodian”).

For the purposes of these General Terms and Conditions, any reference to a “Custodian” is a reference to either a General Custodian or to the OverView Custodian (as the context may require).

2.3       A Custodian may appoint custodians, agents and sub custodians (each, a “Custodial Agent”) and it is reasonable to assume that it will do so for all international holdings.  For New Zealand and Australian holdings custodians will be appointed if required for the purposes of aggregation of holdings or efficiency of Transactions. HHG will ensure that a Custodian is required to exercise reasonable care in the selection of any Custodial Agent. HHG shall not be liable for any act or omission of any Custodial Agent.  Where used, neither HHG nor a Custodian shall have any liability whatsoever for or in respect of any clearance system.  In the unlikely event of a default by any Custodial Agent appointed a Custodian, there may be an irreconcilable shortfall and clients may have to share that shortfall on a pro rata basis.

2.4       We will ensure that a General Custodian (directly or via a Custodial Agent appointed by it) is required to carry out the following obligations relating to your Custody Holdings:

(a)       claiming dividends, interest payments and other rights accruing on your General Custody Holdings;

(b)       where you instruct us to require the General Custodian to do so, exercise conversion and subscription rights;

(c)        where you instruct us to require the General Custodian to do so, deal with takeovers and other offers or capital reconstructions;

(d)       where you instruct us to require the General Custodian to do so, purchase and sell Securities.

However, a General Custodian (and each of its Custodial Agents) shall not have any duty or responsibility as regards attendance at meetings or voting in respect of any of the General Custody Holdings or in respect of proxies received by it or any Custodial Agent in respect of any General Custody Holdings and/or for sending proxies or giving any notice of the receipt of such proxies to us or you.  HHG may not give, and you may not instruct us to give, any instructions to a General Custodian (or any Custodial Agent) which conflict with this.

2.5       We will ensure that the OverView Custodian (directly or via a Custodial Agent appointed by it) is required to carry out the following obligations relating to your OverView Holdings:

(a)       claiming dividends, interest payments and other rights accruing on your OverView Holdings;

(b)       where you instruct us to require the OverView Custodian to do so, exercise conversion and subscription rights;

(c)        where you instruct us to require the OverView Custodian to do so, deal with takeovers and other offers or capital reconstructions;

(d)       where you instruct us to require the OverView Custodian to do so, exercise voting rights; and

(e)       where you instruct us to require the OverView Custodian to do so, purchase and sell Securities.

2.6       You acknowledge that from time to time offers may be made to a Custodian under a share purchase plan, or other offer which is made to shareholders of Securities without regard to the number of Securities held or to whether these Securities are held on behalf of third parties, and that in such circumstances the benefits to you of the offer may be less than would have been the case had the Securities been held in your own name.

2.7       We will not give any instruction to a Custodian to, and will require that the Custodian shall not, transfer, exchange, exercise rights attached to or otherwise deal with your Custody Holdings except pursuant to these General Terms and Conditions or on your instruction or those of an Authorised Person.

2.8       Your Custody Holdings will generally be held in a pooled account. This means that the legal title to the investment is registered in a single name, but we will ensure that all individual clients’ assets are identified within the custody records (and this is the only place individual clients’ assets can be identified).  HHG will ensure that:

(e)       your Custody Holdings are held on trust directly for you at all times (this will be the case with respect to OverView Holdings); or

(f)        if your Custody Holdings cannot be held on trust directly for you, your Custody Holdings are held on trust for HHG at all times, in which case we will hold our beneficial interest in your Custody Holdings on trust for you at all times (this will generally be with case with respect to General Custody Holdings).

2.9       In accordance with NZX Rules, your Custody Holdings held by a Custodian shall be recorded and held in a separate account in its books segregated from assets belonging to the Custodian and/or its Custodial Agent(s). We will also require a Custodian to direct any Custodial Agent(s) used by it to so record and hold (so far as permitted by law, regulations or market practice) all Custody Holdings as identifiable for the account of clients or otherwise to the order of clients as the Custodial Agent may think proper for the purpose of providing for their safe keeping.

2.10     By signing these General Terms and Conditions you agree that we may pass on your details to a Custodian, and may authorise a Custodian to pass on your details to any Custodial Agent, where necessary to transact business on your behalf. You also agree to be bound by any applicable Rules and Regulations relating to the Recognised Securities Exchange of the country in which your Custody Holdings are being transacted. 

2.11     For the avoidance of doubt, these General Terms and Conditions shall not be deemed to terminate solely as a result of any change in the Custody Holdings held from time to time or because at any given time no Custody Holdings are held.  We will require a Custodian or its Custodial Agent to collect all investment income and hold it in trust and accordance with NZX Rules, or otherwise deal with it on instruction given by us on your behalf. Unless otherwise agreed to by a Custodian, all dividends and interest received in a foreign currency will be converted into New Zealand dollars at the time of receipt by a Custodian.

2.12     A Custodian and any Custodial Agent may deduct taxation from any payment of income if it is obliged to do so under New Zealand or international law. You are solely responsible for all taxes or similar liabilities levied on or arising out of any Custody Holdings and any payment to you in respect of your Custody Holdings. Neither we, nor a Custodian nor any Custodial Agent shall have any responsibility or liability with regard to your tax status or position in any jurisdiction.

2.13     Any investments or other consideration received by a Custodian in respect of Custody Holdings shall, unless HHG agrees otherwise, be held subject to these General Terms and Conditions.

2.14     We will require a Custodian to provide us with details of all your Custody Holdings as prescribed in NZX Rules relating to “Custody” at six monthly intervals and within 20 Working Days of that date, and we will provide these details to you. You may also request details of your transactions at any time. A Custodian is required by NZX to hold records for at least 10 years.

3            Accepting Instructions

3.1       HHG shall at its discretion and without liability on its part, rely and act upon instructions from you or an Authorised Person to deal with all or part of the Custody Holdings, and you shall be bound by those instructions.

3.2       Instructions for the transfer of Custody Holdings out of custody into your name must be advised in writing by letter, email or facsimile by you or an Authorised Person.

3.3       When you or an Authorised Person gives us an instruction to deal with or transfer all or part of the Custody Holdings in accordance with this paragraph 3, we will instruct the relevant Custodian to deal with or transfer those Custody Holdings in accordance with your instruction to us.

4            Exclusion of Liability

4.1       Neither HHG, nor any Custodian nor any Custodial Agent shall be liable for losses of any kind which may be incurred by you as a result of the provision of the Custody Services in accordance with your instructions or those of an Authorised Person on your account nor, in any other case, unless due to the gross negligence or wilful default of HHG, any Custodian and/or any Custodial Agent.  Any liability that HHG, any Custodian and/or any Custodial Agent may have to you will be limited to the direct loss suffered or incurred by you, excluding any consequential loss and any loss of income, business, profit or saving or other cost or expense as a result of you, or any other person’s inability to complete another transaction or honour another obligation, or otherwise arising in connection therewith. In no circumstances shall the liability of HHG, any Custodian and/or any Custodial Agent under these General Terms and Conditions exceed the market value of the Custody Holdings held on your behalf in respect of which such liability arose.

4.2       Both we and any Custodian may at any time redeliver all or any Custody Holdings to you without terminating this Part C.

4.3       You acknowledge that the General Custody Services are neither a portfolio management nor a monitoring service and, unless otherwise agreed, you remain responsible for investment decisions and portfolio composition.

5            Termination

5.1       You or HHG may terminate this Part C by written notice to the other, but without prejudice to any pre-existing rights or obligations of the parties, including, for the avoidance of doubt, completion of any matter to effect and settle a transaction and payment of any amount due to HHG, any Custodian and/or any Custodial Agent on that transaction.

5.2       This Agreement will otherwise terminate upon termination of Part A.

5.3       Within a reasonable period after notice of such termination, HHG, any Custodian and/or any Custodial Agent shall arrange to deliver to you by post to your address for the time being notified to us, or otherwise as you may direct, the balance of all Custody Holdings held. When you request a transfer of the Custody Holdings, the transfer shall be made subject to:

(a)       compliance with applicable law or regulatory requirements and to reasonable notice being given to and received by HHG, the relevant Custodian and/or any Custodial Agent.

(b)       the rules and requirements of any relevant investment exchange, clearing system or custodian, provided that HHG, the relevant Custodian  and/or any Custodial Agent may make such arrangements as it deems appropriate and, where applicable, at your expense in order that prompt delivery may be made.

5.4       If you are indebted in any way to HHG in respect of Custody Holdings (for example, without limitation, in respect of unpaid fees or any payment made to you by any Custodian or any Custodial Agent on account of interest, dividends or other income not yet collected by any Custodian or any Custodial Agent) we may decline, and may authorise any Custodian and any Custodial Agent to decline, to redeliver such Custody Holdings until such debt has been discharged.

5.5       You further acknowledge that your indebtedness and liability to HHG and/or its Agents shall be continuing until such time as we and/or our Agent, as the case may be, are satisfied that we have received full and final settlement of payment due on the securities in respect of those amounts paid to you. You shall fully indemnify HHG and/or its Agent in the event of non-payment or part payment only.

5.6       You shall bear all costs and risks of delivery of all Custody Holdings to you or for your order, whether upon termination or otherwise.

5.7       Should all or any part of your Custody Holdings be unable to be held in your name outside of custody, then HHG will arrange for sale of the Security and the proceeds will be deposited into your nominated bank account.

6            Enforcement rights of Custodians

6.1       The provisions of this Part C are for the benefit of, and are intended to be enforceable by, each Custodian for the purposes of the Contracts (Privity) Act 1982.

PART D: client assets

1            Introduction

1.1       This Part D sets out the terms and conditions on which HHG will protect your Client Assets.  This Part D is to be read in conjunction with Part A (as amended from time to time).  In the event of an inconsistency between the terms of Part A and Part D, the terms of this Part D will prevail to the extent of the inconsistency.

2            Protection of Client Assets

2.1       HHG will:

(a)       ensure that your Client Assets are held on trust directly for you at all times; or

(b)       if your Client Assets cannot be held on trust directly for you, ensure that your Client Assets are held on trust for HHG at all times, in which case we will hold our beneficial interest in your Client Assets on trust for you at all times.

2.2       We will ensure that your Client Assets are protected from the time of receipt of those funds until:

(a)       you have received clear funds from us (or from any Trading Participant on our behalf); or

(b)       legal title to the Securities has been registered into your name on the relevant Issuer’s Securities Register; or

(c)        if you have given us an Order to purchase Securities, Client Funds equal to the amount payable by you in relation to that Order are delivered to the Relevant Clearing Participant’s Money Settlement Account (for the clearing and settlement of that purchase in accordance with NZX Rules).

3            HHG Client Funds Account

3.1       HHG will ensure that the Trading Participant opens and maintains one or more separate Client Funds Accounts (or one or more separate sub-accounts within any such Client Funds Account) for Client Funds of our Clients (each, an “HHG Client Funds Account”).  The NZX Rules specify the requirements for the operation of an HHG Client Funds Account by the Trading Participant. 

3.2       HHG will:

(a)       ensure that your Client Funds in an HHG Client Funds Account are held on trust directly for you at all times; or

(b)       if your Client Assets cannot be held on trust directly for you, ensure that your Client Funds in an HHG Client Funds Account are held on trust for HHG at all times, in which case we will hold our beneficial interest in your Clients Funds on trust for you at all times.

4            Payments into HHG Client Funds Account

4.1       Subject to clause 4.2 of this Part D, HHG will pay, and we will require that the Trading Participant pays, directly into an HHG Client Funds Account immediately upon receipt:

(a)       all amounts received from you, or on your account, for Securities purchased or to be purchased;

(b)       all amounts received for you, or on your account, for Securities sold and not paid to or as directed by you; and

(c)        all application monies or call money payable or any other payment received from you, or on your account, and not paid direct to the person entitled to such application or call money.

4.2       Any amounts that are required to be paid into an HHG Client Funds Account pursuant to clause 4.1 of this Part D but which are received by us or the Trading Participant after the relevant Bank’s trading hours shall be paid into an HHG Client Funds Account as soon as possible on the 1st Business Day following the date of receipt.

5            Application of Client Funds in HHG Client Funds Account

5.1       All Client Funds required to be paid into an HHG Client Funds Account will be held upon trust on the basis set out in clause 3.2 of this Part D and applied:

(a)       in reimbursing HHG or the Trading Participant for any amount paid by it in settling the purchase of Securities for you;

(b)       in payment of the sale price for Securities transferred into the Trading Participant’s transfer account by you or by us on your behalf;

(c)        in payment to any other person for whom Client Funds have been held in the HHG Client Funds Account; and

(d)       in payment of, or in reimbursing HHG for payment of, brokerage and other charges properly payable to the Trading Participant in relation to transactions referred to in paragraphs (a) and (b) above.

5.2       To the extent that HHG has deposited its own funds into an HHG Client Funds Account, or we are entitled to apply any of your Client Funds in reimbursing us for any amounts pursuant to clause 5.1 of this Part D, we may withdraw those funds from the HHG Client Funds Account.

6            Method of Payment

6.1       Any payments to you from an HHG Client Funds Account for Securities sold on your behalf shall be made directly to an account with a Bank in your name (as recorded in the Issuer’s Securities Register) by means of:

(a)       a not transferable cheque or other bank instrument made out in your name and delivered to your address as recorded on the Issuer’s Securities Register or your postal address as recorded and verified by us; or

(b)       an electronic transfer as directed and approved by you.

6.2       On your written instruction, or on the written instruction of any person who holds a power of attorney for you, the payment may be made into a different account in accordance with your instructions or the instructions of your attorney.

6.3       For the avoidance of doubt, no payment to you, or to a person who holds a power of attorney for you, may be paid in cash.

7            Method of Receipt

7.1       Funds received by us or by the Trading Participant for Securities bought, or to be bought, on your behalf must be made directly into an HHG Client Funds Account.

8            Distribution of Client Assets

8.1       If the Trading Participant ceases to carry on business as a Market Participant and is unable to honour its Outstanding Obligations, the Client Assets of the Trading Participant (including any Client Assets held for us or for our clients) will be held as a pool of unallocated assets for clients to whom the Trading Participant has Outstanding Obligations (including HHG).  The applicable Securities will be sold and the proceeds, together with funds in the Trading Participant’s Client Funds Accounts (including the HHG Client Funds Account), shall be paid to the Trading Participant’s client’s (including HHG) pro-rata in relation to the amount owing by the Trading Participant to them.

9            Relevant Money Accounts and Relevant Product Accounts

9.1       Under the NZX Participant Rules, a Market Participant Accepting Client Assets is permitted to use:

(a)       its Relevant Money Account maintained under the Depository Rules as a Client Funds Account; and

(b)       its Relevant Product Account maintained under the Depository Rules as a Custody Account.

9.2       If either a Clients Fund Account (including, without limitation, the HHG Client Funds Account) is a Relevant Money Account or a Custody Account is a Relevant Product Account:

(a)       you acknowledge that, under the Depository Rules:

(i)         CDO and the Depository Nominee must recognise only the Relevant Depository Participant in whose name funds or securities are held in a Relevant Money Account or a Relevant Product Account is recorded as the sole beneficial owner of those funds or securities; and

(ii)        CDO and the Depository Nominee must not, except as ordered by a court of competent jurisdiction or as is otherwise expressly provided by the Depository Rules, be liable for, bound by or compelled in any way to see to the execution of any trust or equity affecting the ownership of, or incidental rights to, any funds or securities held in a Relevant Money Account or a Relevant Product Account, nor to recognise the Relevant Depository Participant as holding any funds or securities held in a Relevant Money Account or a Relevant Product Account on trust nor to recognise any proprietary, equitable, contingent, future or partial interest in any funds or securities held in a Relevant Money Account or a Relevant Product Account or any other right, except the beneficial right of ownership in the Relevant Depository Participant in whose name those funds or securities held in a Relevant Money Account or a Relevant Product Account is recorded; and

(b)       you agree that you will not assert, and you will not instruct us to assert, any such proprietary or equitable interest or other right against CDO, the Depository Nominee or any person acting on behalf of CDO or the Depository Nominee (or both).