Marex NZ Limited Carbon terms of business

1. General information

1.1     We, Marex NZ Limited (Company number: 9076640), are incorporated in New Zealand and have our principal place of business at Level 17, 15 Customs Street West, Auckland CBD 1010, New Zealand.

1.2     These Carbon Terms of Business (the “Terms”), the Services, and all Transactions (as defined below) are subject to Applicable Regulations so that: (i) if there is any conflict between these Terms and any Applicable Regulations, the latter will prevail; (ii) nothing in these Terms shall exclude or restrict any obligation which we have to you under Applicable Regulations; (iii) we may take or omit to take any action we consider necessary to ensure compliance with any Applicable Regulations; (iv) all Applicable Regulations and whatever we do or fail to do in order to comply with them will be binding on you; (v) such actions that we take or fail to take for the purpose of compliance with any Applicable Regulations shall not render us or any of our directors, officers, employees, associates or agents liable; and (vi) you agree to comply with all Applicable Regulations.

1.3     The following terms and definitions apply to these Terms:

“Applicable Regulations” means:

(a)  Rules or any other rules of a relevant regulatory authority; and

(b) all other applicable laws, rules and regulations as in force from time to time (including without limitation, accounting rules and anti-money laundering/sanctions legislation).

“Authorised Person(s)” means any natural person who is appointed, employed or authorised by you and notified to us in writing from time to time.

“Business Day” means a day (other than a Saturday, Sunday or a public holiday) on which the banks in Auckland or Wellington are open for general business.

“Buyer” means, in respect of any Transaction, the party who is named as “the Buyer” in the relevant Confirmation.

“Confirmation” has the meaning given to it in clause 2.3.

“Custody Service” means the service operated pursuant to clause 6.

“Delivery” means, in respect of each Transaction to which Delivery applies, the transferring of the quantity of NZUs (in whole and not in part) specified in the relevant Confirmation from the Seller’s Registry Account to the Buyer’s nominated Registry Account, and “Deliver” shall have the same meaning.

“Delivery Acceptance Failure” means: (i) a party fails to provide all relevant details of its Registry Account prior to the Delivery Date; (ii) a party’s Registry Account is incapable of receiving NZUs; (iii) a party has used reasonable endeavours to effect Delivery, however, Delivery was still unsuccessful; or (iv) the Transaction could not be completed for any other reason due to you not performing any other obligations under these Terms.

“Delivery Date” means the date specified in the relevant Confirmation on which Delivery is effected.

“Disruption Event” means an event in which operation of the Registry is disrupted, preventively shut off, or where the Seller is unable to transfer NZUs from the Seller’s Registry Account to the Buyer’s Registry Account in accordance with the Rules of the Registry.

“GST” means goods and services tax applicable to any taxable supplies as determined under the GST Law.

“GST Law” means the Goods and Services Tax Act 1985 (NZ).

“NEON” means the direct market access provided by us to your Authorised Persons in accordance with these Terms and the NEON terms of use.

“NZU” means New Zealand carbon unit as defined in the Climate Change Response Act 2002.

“Payment Date” means the value date on which the payment is released from the Buyer to the Seller as specified in the relevant Confirmation.

“Registry” means the New Zealand Emissions Trading Register.

“Registry Account” means an account at the Registry used for owning or trading NZUs.

“Rules” means articles, rules, regulations, procedures and customs, as in force from time to time.

“Seller” means, in respect of any Transaction, the party who is named “the Seller” in the relevant Confirmation.

“Services” means the services we agree to provide you from time to time in accordance with these Terms including, but not limited to, executing Transactions and the Custody Service.

“Transactions” has the meaning given to it in clause 2.1.

2. Scope and application

2.1     These Terms sets out the basis on which we and you may enter into transactions for the spot sale and purchase of NZUs (the “Transactions”) and the provision of our Services.

2.2     Unless otherwise agreed in writing by the parties, these Terms take effect upon the earlier of: (i) the date that you sign and deliver to us a completed New Zealand Carbon Account Opening Form, and (ii) the first Transaction we enter into with you or the first use of our Services after your receipt of these Terms and shall apply to all Transactions executed or Services received under these Terms.

2.3     These Terms and each confirmation agreed to between the parties in respect of each Transaction (a “Confirmation”) shall, together, constitute a single agreement between the parties. In the event of any inconsistency between the terms of a Confirmation and these Terms, the terms of the Confirmation shall prevail.

2.4     In respect of any Transaction, you represent and warrant that you act as principal and not as agent (or trustee) on behalf of any person or entity.

2.5     In the event the Registry or any regulatory body takes any action which affects a Transaction or our Services, or you are suspended from operating or become insolvent, then we may take any action which we, in our absolute discretion, consider desirable to correspond with such action or to mitigate any loss incurred or which may be incurred as a result of such action.  Any such action shall be binding on you.  If a Registry or any regulatory body makes an enquiry in respect of any of your Transactions, you agree to co-operate with us and to promptly supply information requested in connection with the enquiry.

3. No advice

3.1     In asking us to arrange any Transaction or provide a Service, you represent that you have been solely responsible for making your own independent appraisal and investigations into the risks of the Transaction or Service and, where you are notified of the identity of the counterparty to the Transaction in advance of the Transaction being arranged by us, the risks associated with such counterparty. You represent that you have sufficient knowledge, market sophistication, professional advice and experience to make your own evaluation of the merits and risks of any Transaction or Service. We give you no warranty as to the suitability of the products traded or Service provided under these Terms and (other than where we hold NZUs on trust for you) assume no fiduciary duty in our relations with you.

3.2     We deal on an execution-only basis and do not advise on the merits of particular Transactions or Services, or their taxation consequences.

4. Sale and purchase

4.1     In respect of each Transaction, as consideration for the Delivery of NZUs by the Seller to the Buyer, the Buyer agrees to pay the total payment amount due to the Seller as specified in the relevant Confirmation.

4.2     The Buyer hereby agrees to pay the total payment amount specified in the relevant Confirmation to the bank account nominated by the Seller. For the avoidance of doubt the Seller will not Deliver the quantity of NZUs to the Buyer until the Buyer has effected such payment pursuant to the terms of the relevant Confirmation.

4.3     In the event the Seller is unable to Deliver the NZUs on the relevant Delivery Date due to a Disruption Event, the Delivery Date shall be deemed to be the first Business Day following date on which such Disruption Event has ceased to exist (and the corresponding Payment Date will be extended accordingly).

4.4     For the purposes of subpart EW of the Income Tax Act 2007 (NZ), the parties acknowledge that the purchase price of any NZUs does not include any capitalised interest and is the lowest price that they would have agreed upon with respect to the NZUs at the time the relevant Transaction is entered into. The parties agree that they will compute their taxable income, and file any tax returns due, for the relevant period on that basis.

5. Basis of dealing

5.1     The terms for each Transaction shall be detailed in the respective Confirmation. We may send you a copy of each Confirmation by e-mail to the e-mail address on record for you, unless you advise us in writing that you wish to be sent Confirmations by post and accept an additional charge for such service.  It is your responsibility to immediately inform us of any change to your e-mail address or contact details, the non-receipt of a Confirmation, or of any discrepancies or differences between a Confirmation and your own records. All terms specified in each Confirmation shall be deemed by us to be correct and binding on you and you agree that you will be deemed to have agreed to all the terms of each Confirmation unless you notify us of any discrepancies, differences or objections in writing within one (1) Business Day of receipt by you.

5.2     You are responsible for the due performance of your obligations with respect to every Transaction. You will promptly deliver any instructions, money, documents or NZU deliverable by you under a Transaction in accordance with the terms of the relevant Confirmation. We may also, at our absolute discretion, take actions to facilitate the performance of a Transaction where you have been unable to do so.

5.3     You may give instructions relating to any Transaction by any means agreed between us from time to time. For any other purpose, notices must be given in writing (including by email).

5.4     We may, at our sole discretion, arrange for any Transaction to be effected with or through an affiliate.

5.5     We shall not be obliged to make independent enquiries as to whether your Authorised Persons are permitted to execute each Transaction. We may in our absolute discretion refuse to act on instructions.

5.6     We shall not be bound by the terms of any Transaction where such Transaction is arranged by any person that is not an Authorised Person. You will be responsible for any loss, claim or expense incurred by us as a result of any such Transaction.

6. Custody (if applicable)

6.1     In the event you request for us to hold any of your NZUs on your behalf and we agree to do so, we will hold the relevant NZUs on bare trust for you as the ultimate beneficial owner (“Custody Service”).

6.2     The relevant NZUs may be held in a pooled account, which means that the legal title to NZUs held on your behalf and on behalf of our other clients is held in a single name. However, we will maintain records that enable the relevant NZUs held on your behalf to be readily identified as your property.

6.3     We may, at our discretion, appoint another party to hold the NZUs on your behalf. If we do so, we will be responsible and liable for that party to the same extent as for our own acts.  We will exercise reasonable care in engaging and monitoring the performance of any service provider we appoint.

6.4     Except where the relevant NZUs are part of Transactions conducted under our Services, you shall deliver to us all necessary documents and information, and sign any required documents, and take such actions reasonably requested by us from time to time, to enable the transfer of the relevant NZUs into our safe custody for the purposes of the Custody Service, as directed by us.

6.5     You represent and warrant that you are the beneficial owner of the relevant NZUs, and the NZUs are free and clear from any security interest, lien or other charge.

6.6     You agree with us that you will not give any instruction to us in relation to the NZUs held on bare trust which is inconsistent with these Terms or in breach of any Applicable Regulations. Any direction or instruction given to us by you under, in connection with, or for the purposes of, the Custody Service, shall be deemed to be irrevocable in all respects.

6.7     Where requested you shall perform such acts and sign and execute all such agreements, authorities or documents as may be required by us for the performance or implementation of the Custody Service.

6.8     You are solely responsible for all taxes or similar liabilities levied on or arising out of any NZUs held under the Custody Service.

6.9     The Custody Service may be terminated by either party by notice to the other and require delivery of the relevant NZUs without terminating these Terms.   Within a reasonable period after notice of termination, we shall deliver to you the balance of all relevant NZUs held by us to your nominated Registry Account. You shall bear all costs and risks associated with the delivery of the relevant NZUs, including any reasonable costs incurred by us in terminating the Service in relation to the NZUs. Following delivery to you, the relevant NZUs will no longer be held by us as custodian, and we will have no obligations in relation to the administration of such NZUs.

6.10  Our obligations on termination of the Custody Service and the delivery of the relevant NZUs, shall be subject to:

  • your providing us with details of a valid transferee account with the Registry;
  • compliance with all Applicable Regulations; and
  • 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, as well as the payment of any amounts due to us in relation to that Transaction.

We may withhold delivery of the relevant NZUs to you if you have any outstanding debt to us until that debt has been settled.

6.11  Termination of the Service shall be without prejudice to, and shall not release either party from, any pre-existing rights and obligations under these Terms in respect of the Service, including the payment of any fees.

7. Settlement of transactions and delivery

7.1     Each Transaction shall be settled as provided for in the relevant Confirmation.

7.2     In the event of a Delivery Acceptance Failure, you shall use all reasonable endeavours to complete the Transaction promptly in accordance with terms specified in the relevant Confirmation.

8. Neon terms

8.1     Where we provide access to NEON for your Authorised Persons, on and from the date of the granting of that access and for as long as your Authorised Persons have access to NEON, you agree:

  • to be bound by the NEON terms of use at: https://app.neon.markets/termsofservice as may be amended from time to time;
  • to ratify the acts of your Authorised Persons acting on your behalf on NEON; and
  • to be bound by any Transaction resulting from bids or offers entered into NEON on your behalf by your Authorised Persons.

9. Charges and payments

9.1     You agree to pay us on demand such fees referenced in these Terms, any Confirmations, or otherwise advised to you when you use the Services. We may change our fees from time to time by giving you notice.

9.2     All payments to us under these Terms shall be made in same day funds in such currency as we may from time to time specify and to the bank account designated by us for such purposes. All such payments shall be made by you without any deduction or withholding. At our discretion, payments may only be accepted by us if they originate from a bank account in your name and may not be made by us other than in accordance with standard payment instructions given by a person authorised on your behalf to a designated bank account.

9.3     For any failure by you to us to make payment by the Payment Date as specified in the relevant Confirmation,  we may charge you: (a) interest on the amount or any part of the amount for the time being unpaid and due to us under the relevant Confirmation at: (i) the base rate determined by us acting in a commercially reasonable manner, plus (ii) 3.5% per annum, for each day for which such amount remains unpaid; and (b) you shall indemnify us in full for all legal and other costs and expenses incurred by us in enforcing or seeking to enforce the failure to pay by you of any monies due under these Terms.

9.4     All amounts referred to in these Terms, any Confirmation or otherwise in connection with a Transaction are exclusive of any applicable GST which may become chargeable in respect of any Transaction.

10. Delivery

10.1  The risk in any NZUs acquired by you from us pursuant to any Transaction will pass to you on Delivery. Where an NZU is in your possession before the property in it has passed to you, you agree fully to preserve, or procure the full preservation of it.

10.2  Unless otherwise agreed in writing, property shall pass upon Delivery of the NZUs. Notwithstanding the foregoing, in any Transaction under which we sell an NZU to you, property in the NZU shall remain with us until we have received the total payment amount due for it.

11. Representations and warranties

Each party represents and warrants to the other party on the date these Terms comes into effect and on the date each Transaction is executed, each Delivery Date and, as applicable, each Payment Date, that:

  • they have all necessary authority, powers, consents, licences and authorisations and have taken all necessary action to enable them lawfully to enter into and perform these Terms and each Transaction and to grant the security interests and powers referred to in these Terms;
  • the persons entering into these Terms and each Transaction on their behalf have been duly authorised to do so;
  • these Terms, each Transaction and the obligations created under them both are binding upon the first party and enforceable against them in accordance with their terms (subject to applicable principles of equity) and do not and will not violate the terms of any regulation, order, charge or agreement by which they are bound;
  • it is the sole legal and beneficial owner of all the NZUs, as the case may be, free from any security interest, lien or other charge;
  • any information which they provide or have provided to the other party in respect of their financial position, domicile or other matters is accurate and not misleading in any material respect;
  • it has all necessary governmental and other third-party permits, approvals and licences required in connection with the execution, delivery and performance of the Transaction documents and no Event of Default has occurred and is continuing with respect to it;
  • it will execute all documents and do all things necessary to implement and carry out its obligations under these Terms and any Confirmation and in respect of each Transaction;
  • it is entering into these Terms in a commercial capacity and that, with respect to these Terms, it is in all respects subject to civil and commercial law;
  • it is a producer, processor, commercial user or consumer of, or a merchant handling the commodity transferred under these Terms and is entering into any Transaction solely for purposes related to its business; and
  • it intends to take or make physical delivery, including through the transfer in the relevant registry, of the commodity transferred under these Terms to settle any Transaction.

12. Events of default

12.1  Subject to clause 12.2, the following shall constitute an Event of Default under these Terms, whether or not within the defaulting party’s control:

  • a party fails to promptly make any payment when due under these Terms or fails to promptly make or take delivery of any NZUs when due under these Terms;
  • a party materially fails to observe or perform any other provision of these Terms and such failure continues for two (2) Business Days after notice of non-performance has been given by the non-defaulting party to the defaulting party;
  • it is or becomes unlawful for a party to perform any of its obligations under these Terms;
  • a party is unable to, or admits an inability to, pay its debts as they fall due or is bankrupt or insolvent, as defined under any bankruptcy or insolvency law applicable to such party;
  • any of your accounts with us, including any NZUs held by you, become subject to any mortgage, charge, lien, security interests or other encumbrance without our prior written consent;
  • a party is dissolved or, if such party’s capacity is dependent upon a registration, such registration is removed or ends (or any procedure is commenced seeking to cause such effect);
  • a party: (i) commences a voluntary case or other procedure seeking or proposing liquidation, reorganisation, an arrangement or composition, a freeze or moratorium, or other similar relief with respect to itself or to its debts under any bankruptcy, insolvency, regulatory, supervisory or similar law, or seeking the appointment of a trustee, receiver, liquidator, conservator, administrator, custodian, examiner or other similar official of it or any substantial part of its assets (each a “Custodian”); or (ii) takes any corporate action to authorise any of the foregoing, and, in the case of a reorganisation, arrangement or composition, the other party does not consent to the proposals;
  • an involuntary case or other procedure is commenced against a party seeking or proposing liquidation, reorganisation, an arrangement or composition, a freeze or moratorium, or other similar relief with respect to it or its debts under any bankruptcy, insolvency, regulatory, supervisory or similar law or seeking the appointment of a Custodian of it or any substantial part of its assets and such involuntary case or other procedure either (a) has not been dismissed within five days of its institution or presentation or (b) has been dismissed within such period but solely on the grounds of an insufficiency of assets to cover the costs of such case or other procedure;
  • a party who is an individual becomes of unsound mind or dies;
  • any event of default (however described) occurs under any other agreement between us (or any of our affiliates) and you;
  • any representation, warranty or covenant made or given or deemed made or given by a party under these Terms proves to be or becomes false or misleading, or otherwise void, voidable, or unenforceable, in any material respect;
  • any action is taken or an event occurs which the non-defaulting party reasonably considers has, or is likely to have, a material adverse effect upon the defaulting party’s ability to perform its obligations under these Terms.

12.2  A party shall not be in breach of its obligations under these Terms if there is any total or partial failure of performance of its duties and obligations occasioned by any act of God, fire, act of government or state, war, civil commotion, insurrection, embargo, change of law, inability to communicate with correspondent banks for reasons outside its reasonable control, failure of any computer system caused by reasons outside of its reasonable control, prevention from or hindrance in obtaining any energy or other supplies, labour disputes of whatever nature or late or mistaken delivery or payment by any correspondent bank or any other reason beyond its reasonable control.

12.3  Upon an Event of Default arising in relation to you , we shall be entitled without prior notice to you:

  • withhold any payment amount or NZUs due to you under any Transactions or in relation to the Custody Service;
  • sell any NZUs previously to be transferred to you under a Transaction or held under the Custody Service to any third party upon such terms as we may in our absolute discretion think fit;
  • to close-out, replace or reverse (or require the closure, replacement or reversal of) any Transaction; and/or
  • to terminate these Terms immediately.

13. Termination

13.1  Unless otherwise required by Applicable Regulations and subject to clauses 12.2 and 13.4, either party may terminate these Terms at any time on five (5) Business Days’ written notice (including electronic mail) to the other party. Upon termination:

  • all amounts payable by you to us, and all obligations under any Transaction outstanding on the termination date shall become immediately due and payable;
  • the Custody Service (if applicable) shall also terminate, and clauses 6.9 and 6.10 will apply.

13.3  Without limiting clause 6.11, termination shall not affect any outstanding rights and obligations and Transactions which shall continue to be governed by these Terms and the relevant Confirmation until all obligations have been fully performed.

13.4  If no Transactions have been executed under this Terms for a period of at least two (2) years, these Terms shall automatically terminate and we shall have the right to close all accounts associated with these Terms.

14. Confidentiality

Neither party shall make any public disclosure, communication or announcement about the contents of these Terms or of any of the other information of which it has become aware in connection with these Terms except:

  • with the prior written consent of the other party;
  • to the extent required by Applicable Regulations, a competent court or other competent authority or as otherwise detailed;
  • to the professional advisers of each party, provided that each party ensures that the matters disclosed are kept confidential; or
  • in respect of information which is lawfully in the public domain.

15. Limitation of liability

15.1  Subject to clauses 15.2 and 15.3, neither party nor its directors, officers, employees or agents shall be liable to the other party for any losses, damages, costs or expenses incurred or suffered as a result of any Transaction or provision of Services or breach of these Terms unless arising or resulting directly from the gross negligence, wilful default or fraud of the liable party.

15.2 Notwithstanding clause 15.1, neither party will be liable to the other (i) for any adverse tax, accounting or other implications of any Transaction or our Services whatsoever; or (ii) by reason of any delay or change in market conditions before any particular Transaction is effected.

15.3 Without limiting any provision in this clause 15, neither party shall be liable to the other party under these Terms, whether in contract, tort or on any other basis, for any indirect, special, or consequential loss or damages of any kind, including loss of profit.

15.4  You shall pay to us such sums as we may from time to time require in or towards satisfaction of any debit balance on any of your accounts with us and, on a full indemnity basis, any losses, liabilities, costs or expenses (including legal fees), taxes, imposts and levies which we may incur or be subjected to directly with respect to any of your accounts or any Transaction or Service or with an intermediate broker, or as a result of any misrepresentation by you or any violation by you of your obligations under these Terms (including any Transaction or Service) or by the enforcement of our rights.

16. Notices

16.1  All notices, instructions or any other communication shall be in writing and delivered via (i) email or (ii) pre-paid post or courier service, in each case to the details set out in the Schedule to these Terms (or in the Schedule to any previous agreement, as appropriate), or (iii) electronic portal.

16.2  Any notice given under clause 12.1 shall be deemed to have been received by you when: (i) in the case of email, immediately upon dispatch unless a failure of delivery notification is received by the sender within one hour of sending; (ii) in the case of pre-paid post or courier service, 24 hours after the same has been posted; or (iii) in the case of electronic portal, the date on which the same has been posted on such portal or otherwise made available to you.

16.3  For the purposes of clause 17.1, notice of amendment of these Terms may be given in accordance with clause 16.1. or by notification on our website, or by such other means of public notification as we elect from time to time.

17. Miscellaneous

17.1  We may amend these Terms from time to time on reasonable notice to you. Use of our services (including the Service) shall constitute acceptance of any amendments for which notice has been given in accordance with these Terms.

17.2  You will promptly (and within no more than two (2) Business Days) update us of any change to the information that you provide to us, including your contact information.

17.3  A person who is not a party to these Terms has no right under the Contract and Commercial Law Act 2017 to enforce any of these Terms.

17.4  Any money that we receive from you in connection with a Transaction that does not become a concluded Transaction shall be held by us in our house account and subject to a title transfer collateral arrangement (being an arrangement by which full ownership of the money is transferred to us for the purpose of securing or otherwise covering present or future actual, contingent or prospective obligations). Accordingly, we shall not hold any such money in accordance with the client money rules under the Financial Markets Conduct Act 2013 (which set out a firm’s obligations when it holds money as trustee for and on behalf of clients in connection with the firm’s regulated business)

17.5  Any failure or delay by either party in exercising their rights hereunder shall not operate as a waiver of such rights and remedies. If, at any time, any provision of these Terms or any Transaction is or becomes illegal, invalid or unenforceable, in any respect, it will not affect the legality, validity, or enforceability of the remaining provisions of these Terms or any Transaction.

17.6  Neither party may assign any of its rights or obligations under these Terms without the prior written consent of the other party.

18. Governing law and jurisdiction

These Terms shall be governed by and construed in accordance with the laws of New Zealand and the parties agree to submit to the exclusive jurisdiction of the courts of New Zealand.