Privacy & Legal
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1 General Terms and Specific Terms
1.1 Each precious metal transaction (whether for trading, deposits, loans, services and/or other activities) (individually a Transaction, and collectively the Transaction) from time to time entered into between Goldstrom (us) and the Counterparty (you) shall be governed by (a) these General Terms (General Terms) and (b) the applicable Specific Terms provided to you (each, Specific Terms).
1.2 We have the right at any time and from time to time to amend these General Terms and/or each Specific Terms. Details of any amendments will be published on www.goldstromgroup.com. Such amendments will take effect and be deemed to be accepted by you in respect of all Transactions entered into by you and us after the date of their publication by us.
1.3 You and we are and intend to be legally bound by the terms of a Transaction from the moment you and we agree to those terms (whether agreed orally, by email or otherwise). The terms of a Transaction, the General Terms and the Specific Terms shall override and supersede in all respects any other terms and conditions on which either (a) you trade, transact, refer to or seek to apply, or (b) are applied by custom or trade, and none of such other terms and conditions shall govern or apply to a Transaction.
2 Single Agreement
All Transactions are entered into in reliance on the fact that the General Terms, the Specific Terms and all Confirmations together form a single agreement between the Parties (collectively, Agreement) and that the Parties would not otherwise enter into any Transactions.
3 Inconsistency or Conflict of Terms
3.1 In the event of any inconsistency or conflict between (a) the Specific Terms and (b) the General Terms, the Specific Terms shall prevail for the purposes of a Transaction.
3.2 In the event of any conflict with (a) the General Terms or the Specific Terms and (b) a Confirmation, the terms of the Confirmation shall prevail for the purposes of a Transaction.
4 Definitions and Interpretation
4.1 Definitions
In respect of a Transaction, the following definitions apply:
Account Balance means the total cash and non-cash assets held in the Cash Account and/or Precious Metals Account.
Affiliate means, in relation to any Person, any other Person that, directly or indirectly, controls, is controlled by or is under common control with such specified Person and Affiliates shall be construed accordingly. The reference to control of a Person by another means that the other (whether alone or acting in concert with others, whether directly or indirectly and whether by the ownership of share capital, the possession of voting power, contract or otherwise) has the power to appoint and/or remove all or the majority of the members of the board of directors or other governing body of that Person or of any other Person which controls that Person or otherwise controls or has the power to control the affairs and policies of that Person or of any other Person which controls that Person (and controlled and controlling shall be construed accordingly).
Analysis means an analysis (which shall be final and binding) as to (a) the weight and quantity and (b) the purity or quality, such analysis as carried out by a Refinery/Analyser or us (including without limitation the issuance of a Certificate of Analysis).
Business Day means a day (other than a Saturday or a Sunday) on which banks are open for the transaction of general business (a) in the location where the delivery or deposit of Precious Metal, the loan or the provision of the services occurs, and (b) in the principal financial centre for the currency of a Transaction.
Cash Account means the internal ledger account opened by us for you that records the amounts, in currency, paid by you to us or paid by us to your bank account, together with the current credit or debit balance.
COA means a Certificate of Analysis (including without limitation XRF and fire assay) issued by a Refinery/Analyser.
Confirmation means the written confirmation (whether designated as a confirmation, a principal terms of trade, or otherwise) referred to in Clause 5 that reflects the principal commercial and other terms of a Transaction.
Counterparty means a Party other than Goldstrom.
Contractual Currency means USD or other agreed currency.
Documents of Title means all certificates, title documents, receipts, air waybills, bills of lading and other documentary evidence, that are required by you or us (as applicable) to transfer unencumbered title, possession and control of Precious Metal.
Encumbrance means any mortgage, charge, assignment (including by way of security), pledge, hypothecation, lien, right of set-off, retention of title provision, flawed asset arrangement or any other security interest of any kind whatsoever.
g means grams.
Goldstrom means the Goldstrom corporate entity to a Transaction and as specified in the Confirmation.
Goldstrom Group means Goldstrom Pte Ltd and all or any of its Affiliates.
kg means kilograms.
LBMA means The London Bullion Market Association or its successor.
LBMA Rules means the rules and regulations of the LBMA where these are applicable.
Licence includes any licence, consent, authorisation or permit.
oz t means troy ounces.
Party means a party to the General Terms, the Specific Terms and a Transaction.
Person means any individual, firm, company, corporation, unincorporated association, government, state or agency of state, or any association, trust, partnership or joint venture (whether or not having separate legal personality).
Physical InventoryAccount means the internal ledger account opened by us for you that records (a) the type, form, weight, quantity and quality, and (b) the physical location, of Precious Metal.
Policies mean all policies from time to time issued by any member of the Goldstrom Group and published on www.goldstromgroup.com or otherwise made available to you, including without limitation the (a) Business Partner Code of Conduct Policy, (b) AML & KYC Policy, (c) Anti-Bribery and Anti-Corruption Policy, (d) Modern Slavery Statement and (e) Responsible Sourcing Policy.
Precious Metal means the agreed precious metal (by type, form, quantity, weight and quality) and whether refined or unrefined.
Precious Metal Account means the internal ledger account opened by us for you that records the then-current value in USD of Precious Metal.
Refinery / Analyser means (at our sole discretion and nominated by us) a refinery, an analyser or us.
Regulatory Authority means any governmental, intergovernmental or supranational body, agency, customs authority, department or regulatory, self-regulatory, supervisory or administrative authority or similar body.
Relevant Jurisdiction means, in respect of you or us, the jurisdiction (a) in which it is incorporated, organised, managed and controlled, or considered to have its seat, (b) in which a branch or office through which it is acting, for the purpose of a Transaction, is located, (c) in which it executes a Transaction and/or (d) in relation to any payment, from or through which such payment is made.
Sales Tax means any GST, VAT or similar Tax as levied on you or us under any applicable jurisdiction.
Sanctioned Country means a country or territory which is subject to Sanctions.
Sanctioned Person means any Person who is (a) listed on, or is owned or controlled, directly or indirectly (as such terms are used in the Sanctions or in any guidance in relation to the Sanctions) by a person listed, on a Sanctions List; (b) organised under the laws of, or a citizen or resident of, any Sanctioned Country; or (c) otherwise a target of Sanctions.
Sanctions means any sanctions, trade embargoes or similar measures imposed, enacted, administered or enforced from time to time by a Sanctions Authority.
Sanctions Authority means any of (a) the United States of America; (b) the United Nations; (c) the European Union or any present or future member state; (d) the United Kingdom; or (e) the respective governmental and official institutions or agencies of any of the foregoing including, without limitation, OFAC, the United Nations Security Council and the United Kingdom HM Treasury.
Sanctions List means any of the lists of specifically designated nationals, designated persons or entities (or the equivalent) held, issued or maintained by any Sanctions Authority, each as amended or substituted from time to time.
Specifications means the agreed type, form, quantity, weight and quality of Precious Metal.
Tax means any present or future tax, levy, charge, impost, duty, fee, deduction or withholding of whatever kind and whether direct or indirect and includes without limitation any fine, penalty, charge, fee or other amount imposed on or in respect of any of the above.
Transaction Date means the date on which you and us have agreed to a Transaction (whether agreed orally, by email or otherwise).
4.2 Interpretation
In the General Terms and the Specific Terms, (a) the headings are for convenience only and shall be ignored in construing the General Terms and the Specific Terms, and words importing the singular include the plural and vice versa; (b) references to Clauses are to be construed as references to the clauses of the General Terms and the Specific Terms; and references to the General Terms, the Specific Terms, the Confirmation shall be construed as references to the General Terms, the Specific Terms and the Confirmation, as amended, varied, novated or supplemented from time to time; and (c) references to any statute or statutory provision include any which amends, extends, consolidates or replaces the same, and includes any orders, regulations, instruments or other subordinate legislation made under the relevant statute; and references to law includes any legislation, common law, custom, constitution, decree, judgment, order, treaty or other legislative measure in any jurisdiction and any requirement or guideline.
5 Confirmations and Trade Receipts
5.1 On the Transaction Date or promptly thereafter, we shall send to you by e-mail (or other suitable means of communication) a Confirmation recording the details of a Transaction.
5.2 The failure by us to send, or your failure to sign and return, a Confirmation shall not affect the validity or enforceability of a Transaction.
5.3 In addition to the Confirmation under Clause 5.1, where a Transaction is composed of two or more individual Precious Metal trades, we shall also send you at the relevant time a trade receipt for each such Precious Metal trade.
6 Specific Terms
Each Transaction shall be subject to the provisions set out under the applicable Specific Terms.
7 Representations and Warranties
7.1 Mutual Representations and Warranties
Each Party enters into and will enter into a Transaction in reliance on the following representations and warranties made to it by the other Party:
(a) (where such Party is a legal Person), it is duly registered, validly existing and in good standing in its jurisdiction of formation, and has the power to carry on its business as it is now being conducted;
(b) the General Terms and the Specific Terms have been, and a Transaction are and will be, duly authorised, executed and delivered by it and constitutes or will constitute its legal, valid and binding obligations;
(c) the execution, delivery and performance of the General Terms, the Specific Terms, a Transaction and the Confirmation do not and will not (i) require any Licence of any governmental or other regulatory body except for those already obtained, (ii) violate (aa) any applicable laws or regulations or (bb) any agreement, document or instrument binding on it or its assets or constitute a default or termination event (however described) under any such agreement, document or instrument;
(d) it has and will maintain all necessary Licences to conduct its business activities and operations;
(e) it acts and will act as principal in respect of a Transaction;
(f) it has and will conduct its business activities and operations in strict compliance with all applicable laws and regulations, including anti-money laundering laws and financial record keeping and reporting requirements, rules, regulations and guidelines; and
(g) to the best of its knowledge, no Termination Event has occurred or will occur.
7.2 Additional Representation and Warranty by the Counterparty
We enter into and will enter into a Transaction in reliance on the representation and warranty made to us that you have and will conduct your business activities and operations in strict compliance with all of our Policies.
8 Termination
8.1 Termination by Notice
Either Party may at any time by prior written notice to the other Party terminate the General Terms so that no further Transactions shall be entered into, but such termination shall be without prejudice to the continuing effect of the General Terms and the Specific Terms in respect of all existing Transactions.
8.2 Termination Events
The events and circumstances set out below shall each constitute a Termination Event:
(a) (i) a Party ceases or suspends payment of any of its debts or is unable or admits inability to pay its debts as they fall due or any step is taken for the winding up, administration, receivership or any other form of debt enforcement or insolvency procedure relating to the Party, including any proposal for a compromise or arrangement (including a voluntary arrangement) to its creditors; or (ii) a liquidator, administrator, receiver or administrative receiver is appointed in relation to a Party or any of its assets (each, Insolvency Event);
(b) it becomes unlawful at any time for any Party to perform all or any of its obligations under the General Terms, the Specific Terms or a Transaction or the Party suspends, ceases or threatens to suspend or cease to carry on all or a substantial part of its business or any event or series of events occur which in the opinion of the other Party has or could reasonably be expected to have a material adverse effect on: (i) the ability of the Party to comply with its obligations under the General Terms, the Specific Terms or a Transaction or (ii) the business, financial condition or assets of the Party;
(c) any Regulatory Authority takes any action that affects a Party’s ability to perform its obligations under the General Terms, the Specific Terms or a Transaction; or
(d) a Party (i) commits a breach of any term or provision of the General Terms, the Specific Terms or a Transaction and such breach, if capable of remedy, is not remedied within two (2) Business Days of receiving notice of such breach or; (ii) repudiates, or evidences an intention to repudiate, the General Terms, the Specific Terms or a Transaction.
8.3 Consequences of a Termination Event
At any time after the occurrence of a Termination Event, the Party that is not subject of a Termination Event (Non-defaultingParty) may by notice to the other Party (a) terminate the General Terms, the Specific Terms and/or any existing Transaction(s); and/or (b) in the case where we are the Non-defaulting Party, immediately discontinue our provision of Precious Metal services.
8.4 Rights and Remedies on Termination by Notice or a Termination Event
Termination by a Party of the General Terms pursuant to Clause 8.1, or termination by the Non-defaulting Party of the General Terms, the Specific Terms and or/any existing Transactions pursuant to Clause 8.3, shall be without prejudice to any rights and remedies at law or in equity that (a) have accrued to the benefit of the terminating Party prior to such termination and/or (b) are available to the terminating Party on such termination.
9 Force Majeure
9.1 Force Majeure Event
A Force Majeure Event means any event that is reasonably beyond the control of the Party affected (Affected Party) and which prevents or delays the Affected Party from carrying out all or any of its obligations under the General Terms, the Specific Terms or a Transaction, including any of the following events: (a) any fire, flood, atmospheric disturbance, lightning, storm, typhoon, hurricane, tornado, tsunami, earthquake, landslide, or other acts of God, (b) any war (whether declared or undeclared), terrorism, riot, civil war, blockade, insurrection, currency and trade restriction, embargo, acts of public enemies, civil disturbance or piracy, (c) any epidemic, pandemic, plague, quarantine or lockdown, (d) any prohibition or restriction of whatever nature (including without limitation quarantine or lockdown) implemented in connection with or relating to the COVID-19 pandemic (or any variants or mutations of the COVID-19 pandemic) imposed by any Regulatory Authority that adversely affects the performance by a Party of its obligations under the General Terms, the Specific Terms or a Transaction, notwithstanding the existence of any prohibition or restriction at the time of entering into the Agreement, or (e) any strike, lock-out or other industrial disturbance.
9.2 Consequences of a Force Majeure Event
(a) A Force Majeure Event shall operate to extend the period for the performance of the Affected Party’s obligations under the General Terms, the Specific Terms or a Transaction, subject to Clause 9.2 (g) below.
(b) Upon the occurrence of a Force Majeure Event, the Affected Party shall notify the other Party as soon as reasonably practicable (and no later than (15) fifteen days thereafter) and shall specify in such notice:
(c) the particulars of the event giving rise to the Force Majeure Event, in as much detail as is then reasonably available, including the time at which the Force Majeure Event first arose.
(d) the obligations the performance of which have been hindered, prevented or delayed and an estimate (acting in good faith) of the period during which the Affected Party believes the performance is likely to be hindered, prevented or delayed, and the measures to be implemented, if any, to ensure the full resumption of the obligations of the Affected Party’s obligations.
(e) such notice shall thereafter be supplemented and updated at reasonable intervals during the period of such Force Majeure Event, specifying actions being taken to remedy the circumstances causing the Force Majeure Event and the date on which such Force Majeure Event ceases to exist.
(f) The Affected Party shall exercise commercially reasonable endeavours and diligence to overcome the effects of the Force Majeure Event and resume normal performance of its obligations after the occurrence of the Force Majeure Event. Prior to resumption of normal performance, the Parties shall continue to perform their obligations to the extent not prevented by such Force Majeure Event.
(g) If within thirty (30) days of the occurrence of the Force Majeure Event, the Affected Party is unable to resume fully the performance of its obligations under the General Terms, the Specific Terms or an affected Transaction, then either Party may terminate the affected Transaction. Upon termination of such affected Transaction, the Parties shall have no further liability in respect thereof.
10 Invoicing, Payments, Currency, Set-Off and Records
10.1 Invoicing
(a) The Party due to receive any payment under a Transaction shall promptly submit to the other Party at its request a commercial invoice stating the amount owed.
(b) The Party required to pay the invoiced amount shall (subject to our set-off rights under Clause 10.4(b)) make payment to the other Party on or before the due date specified in the commercial invoice (Due Date),
10.2 Payments, Currency
All payments under pursuant to the General Terms, the Specific Terms or a Transaction shall be made for value on the Due Date in freely transferable and readily available funds in the Contractual Currency.
10.3 Set-Off
(a) You shall be entitled to set-off any moneys payable by us pursuant to the General Terms, the Specific Terms or a Transaction against any liabilities of ours or any of our Affiliates (whether present, future, actual or contingent) pursuant to this or any other agreement with us or any of our Affiliates, regardless of the place or payment or currency of either obligation.
(b) We shall be entitled to set-off any moneys payable by us pursuant to the General Terms, the Specific Terms or a Transaction against any liabilities of you or any of your Affiliates (whether present, future, actual or contingent) pursuant to this or any other agreement with us or any of our Affiliates, regardless of the place or payment or currency of either obligation.
10.4 Our Records as Prima Facie Evidence
In the absence of manifest error, our own records shall be prima facie evidence of the amounts from time to time calculated, payable and/or paid by either Party to the other Party.
11 Assignment and Transfer
11.1 The transfer of any rights or obligations under the General Terms, Specific Terms or a Transaction by you or us to any Affiliate or other Person requires the prior written consent of the other Party.
12 Notices, Confirmations, Authorised Signatories and Communications
12.1 All notices, Confirmations and other communications under the General Terms or the Specific Terms may be sent by letter or e-mail, if to Goldstrom to the address specified below, or if to you to the address and email, or as otherwise provided to the other Party.
12.2 Notices, Confirmations and other communications shall be deemed to have been received (a) in the case of a letter, when delivered personally or (b) if posted or sent by private courier, forty-eight hours after posting or dispatch or (c) in case of an electronic communication when actually received in readable form, provided in each case that if the day of deemed receipt is not a Business Day in the country of the addressee, it shall be deemed received by 10.00 am local time to the addressee on the immediately following Business Day.
Address for notices to us:
Email: client-services@goldstromgroup.com
Address: 8 Marina Boulevard, Level 11, Marina Bay Financial Centre Tower 1, Singapore, 018981
12.3 All notices and Confirmations shall be sent by us to the email and address you have provided to us. You shall notify us immediately of any change to your email, address or tax residence status.
12.4 You shall provide us with a list of authorised signatories who are permitted to operate the account. You may update the authorised signatories at any time. In the absence of you providing us this list, the authorised signatories with permission to sign singly shall be (a) the listed Officer’s of the Company in the official company registry extract, including the Director(s), Secretary(s) or Chief Executive Officer, or any other officer listed in the registry extract, or (b) the Key Person as specified on the account opening documents with Goldstrom.
12.5 The authorized signatories and their associated authorized e-mail addresses shall apply to all precious metal transactions on your precious metal account(s) held with us, unless individually agreed otherwise.
Any loss or damage resulting from reliance by us on any false, forged, altered or otherwise legally insufficient instructions, documentation or other legitimation by you shall be borne exclusively by the you. The authorized signatories and e-mail addresses are valid until revoked by the you in writing, with such revocation taking effect one business day after receipt, irrespective of any deviating entries in the Commercial Register or deviating public announcements.
By providing an updated authorized signatories list, such list supersedes and extinguishes any prior written or oral agreement between us with respect to such subject matter.
13. Rights and Waivers
13.1 Rights Cumulative
Save as expressly provided in the General Terms or the Specific Terms, no right or remedy conferred on either Party by the General Terms or the Specific Terms shall be exclusive of any other right or remedy contained in or arising out of the General Terms or the Specific Terms or by law and all such rights and remedies shall be cumulative.
13.2 No Waiver
The exercise of any power or remedy or enforcement of any right by either Party shall not be construed as a waiver of the right to exercise any other power or remedy or to enforce any other right. Any forbearance or indulgence granted by either Party shall not constitute a waiver of the power, remedy or right in respect of which such forbearance or indulgence is granted or of any other power, remedy or right and such Party, as the case may be, shall be entitled to exercise each such power, remedy or right at any time thereafter.
14 Effect of Invalidity
If at any time any provision of the General Terms, the Specific Terms or a Transaction shall be found by any court or administrative body of competent jurisdiction to be invalid, illegal or unenforceable, such invalidity, illegality or unenforceability shall not affect the other provisions of the General Terms, the Specific Terms or a Transaction (as applicable), which shall remain in full force and effect.
15 Counterparts
The General Terms, the Specific Terms and the Confirmation may be executed by different counterparts, each of which when executed and delivered shall constitute an original and together shall constitute one and the same instrument.
16 Disclaimer
16.1 Each Party confirms that it has made its own prior assessment of the underlying structure, benefit, impact or effect of a Transaction and other matters referred to in the General Terms or the Specific Terms.
16.2 Each Party confirms it has had full opportunity to take and has taken its own independent legal, accounting, tax, financial, operational and any other advice it may deem necessary or relevant in respect of a Transaction.
16.3 Each Party confirms that, in respect of a Transaction, except for any representations expressly made by the other Party under the General Termsor the Specific Terms, it does not and will not rely on any statements or representations of the other Party or any of their officers, directors and Affiliates or any of their advisors as to the legal, accounting, tax, financial, operational or other impact or effect of a Transaction.
16.4 Each Party acknowledges and confirms that none of the other Party or any of its officers, directors and Affiliates shall have any liability whatsoever to such Party in respect of (a) any statements or representations as to the impact or effect of a Transaction, other than those representations made by such other Party under the General Termsor the Specific Terms; or (b) any of such other Party or any of its officers, directors and Affiliates being deemed to have not made available or provided either (i) legal, accounting, tax, financial or operational advice or (ii) any other advice or benefit anticipated by the Party.
17 Confidentiality
17.1 Confidential Information
Each Party agrees and shall ensure in respect of the General Terms, the Specific Terms, a Transaction, the Confirmation and all information and data contained therein that they (a) will be used solely for the purposes of a Transaction; (b) will be kept confidential by it and its officers and employees; (c) will not be disclosed or used for the purposes of dealing in or procuring alternative arrangements relating to a Transaction; and (d) will not be disclosed to any third party.
17.2 Disclosure of Confidential Information
The confidentiality obligations in Clause 17.1 do not preclude (a) any disclosure or communication made by any Party which was, or is, reasonably necessary for the purpose of negotiating or performing the Agreement; (b) any disclosure or communication by a Party to any of its Affiliates and any of its or their officers, directors, employees, agents, professional advisers, auditors, insurers, insurance brokers and service providers; (c) any disclosure made by a Party for the purposes of financing its business; (d) any disclosure by a Party to any Person (i) to (or through) whom it assigns or transfers (or may potentially assign or transfer) all or any of its rights and/or obligations under the Agreement and/or a Transaction; or (ii) to whom information is required or requested to be disclosed by any court or tribunal of competent jurisdiction or any Regulatory Authority, the rules of any relevant stock exchange or pursuant to any applicable laws or regulations.
18 Anti-Bribery, Anti-Corruption and Anti-Money Laundering
18.1 A Party shall not, and shall ensure that its Affiliates shall not, directly or indirectly use the proceeds or receipts of a Transaction for any purpose which would breach the Singapore Prevention of Corruption Act (Chapter 241), the UK Bribery Act 2010 and/or the US Foreign Corrupt Practices Act of 1977 or other similar or analogous laws in any other jurisdiction.
18.2 A Party shall provide all information to the other Party which it reasonably requires to manage its anti-money laundering, counter-terrorism financing or economic and trade sanctions risk, and/or to comply with all applicable laws and regulations in any jurisdiction.
19 Sanctions
A Party shall not, and shall ensure that its Affiliates shall not use, lend, contribute or provide all or any part of the proceeds or receipts of a Transaction, directly or indirectly, to any Person to the extent such usage, lending, contribution or provision would be prohibited by Sanctions or would otherwise cause any Person (including a Party) to be in breach of Sanctions.
20 Limitation of Liability
Neither Party shall be liable to the other Party for any liability, howsoever arising whether under the Agreement, in tort (including negligence), under statute or otherwise, for loss of revenue, profit or use of capital, strict liability, delay, loss of business reputation or opportunities, or for any specific, incidental, punitive, indirect damages or consequential loss or damage of any nature suffered by the other Party, provided that nothing in the Agreement shall exclude or limit the liability of a Party for (a) death or personal injury caused by negligence, or (b) fraud or fraudulent misrepresentation.
21 Miscellaneous
21.1 The Parties do not intend that any term of this Agreement shall be enforceable solely by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person who is not a Party.
21.2 The provisions of the United Nations Convention on Contracts for International Sale of Goods (Vienna 1980) shall not apply to the Agreement.
22 Governing Law, Arbitration and Waiver of Immunity
22.1 Governing Law
The Agreement, a Transaction and any non-contractual obligations arising out of or in connection with the Agreement and/or a Transaction shall be governed by and construed in accordance with English law.
22.2 Arbitration
(a) Any dispute or claim arising out of or in connection with the Agreement or a Transaction (including a dispute relating to the existence, validity or termination of the Agreement, a Transaction or any non-contractual obligation arising out of in connection with the Agreement) (Dispute) shall be referred to and finally resolved by arbitration under the Arbitration Rules (Rules) of the London Court of International Arbitration (LCIA) for the time being in force, which Rules are deemed to be incorporated by reference into this Clause 22.
(b) The arbitral tribunal shall consist of three arbitrators. The claimant shall nominate jointly one arbitrator; the respondent shall nominate jointly the second arbitrator, and a third arbitrator (who shall act as Chairman) shall be appointed by the arbitrators nominated by the claimant and the respondent or, in the absence of agreement on the third arbitrator within seven (7) days of the appointment of the second arbitrator, by the LCIA Court (as defined in the Rules). The seat of arbitration shall be London, England. The language of the arbitration shall be English.
(c) For the purposes of arbitration pursuant to this Clause 22.2, the Parties waive any right of application to determine a preliminary point of law or appeal on a point of law under Sections 45 and 69 of the Arbitration Act 1996.
22.3 Waiver of Immunity
You irrevocably and unconditionally (a) agree not to claim in any jurisdiction, for yourself or in respect of your assets, immunity from suit, execution, attachment (whether in aid of execution, before judgment or otherwise) or other legal process and waives such present or future immunity, whether claimed or not; and (b) consent generally to the giving of any relief or the issue of any process in connection with any proceedings, including the making, enforcement or execution against any property of any nature (irrespective of its use or intended use) of any arbitration award.
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1 Specific Terms
These Specific Terms for Precious Metal Trading (Specific Terms), in addition to the General Terms, govern all Transactions for the sale and purchase of Precious Metal between you and us.
2 Definitions
In respect of a Transaction for the Trading of Precious Metal under these Specific Terms, the definitions under the General Terms and the following additional definitions apply:
Account Valuation Loss Limit means the limit set by us from time to time, at its sole discretion, on any losses arising from the revaluation of open positions in Precious Metals Transactions. If such limit is exceeded the Client agrees to make sufficient and immediate payments to bring the valuation back within the approved limit.
Account Value means the sum the profits and losses arising on open positions in Precious Metals after being re-valued at the prevailing market rates plus the Accounts cash balances.
Aggregate Open Position means the total amount of open positions between the parties from time to time as calculated by us.
Buyer means the buyer of Precious Metal and as specified in the Confirmation.
Call Level means the percentage level, at which we may request a top-up to the down payment in order to maintain adequacy with the Initial Down Payment Percentage.
Close Out means any Transaction(s) carried out by us to offset any open positions as may be required from time to time.
Close Out Level means that percentage level at which your position may be closed out by us.
Currency Exchange means the sale and or purchase by of any currency or currency product as determined by us from time to time in relation to the sale and or purchase of Precious Metals by you.
Client Equity shall mean the sum of Total Net Value of your Accounts after all open Precious Metals positions have been valued at the prevailing markets rates. Unless an Account Valuation Loss Limit has been approved by us. The Client Equity should always be positive in our favour.
Delivery Date means the date(s) agreed by you and us and specified in the Confirmation being the date(s) upon which Precious Metal shall be delivered by the Seller to the Buyer.
Delivery Point means (a) in respect of a Transaction for unrefined Precious Metal, at (i) our offices, (ii) a Refinery or Analyser, or (iii) any other location, in each case as agreed by you and us and as specified in the Confirmation; or (b) in respect of a Transaction for refined Precious Metal, at (i) a Refinery, (ii) an Analyser, or (iii) any other location (including our offices), in each case as agreed by you and us and as specified in the Confirmation.
Exchange Rate means the rate for converting one currency into another currency which we determine to be prevailing in the relevant foreign exchange market at the relevant time, such determination to be conclusive and binding on you.
Expiration Date means, in respect of Options, the date specified as such in the related confirmation.
Expiration Settlement Date means, in respect of Options, the date specified as such in the related confirmation.
Foreign Exchange shall mean such currencies as determined by us from time to time and “Currency” shall mean any one of such currencies.
Indebtedness means the total of all liabilities, converted into U.S. dollars at the Exchange Rate, owing by you to us from time to time whether present or future, actual or contingent, primary or collateral, several or joint, secured or unsecured, and whether arising under this Agreement, the entering into of Transactions or Closing-out of open positions or otherwise, including and without limitation, charges thereon, both before and after any demand or judgments, to the date on which payments are received by us, at the rates payable by you or which would have been payable but for any circumstance which restricts payment and all charges, fees (including legal fees charged to or by us), and expenses incurred by us in enforcing its rights under this Agreement.
Initial Down Payment means of the amount of a Transaction required as an Initial Down Payment for each Transaction, issued by us as notice to you.
Initial Down Payment Percentage means the amount of the Initial Down Payment reflected as a percentage.
Maximum Facility means the maximum aggregate number of open positions, which may be open at any given time.
Maximum Term shall mean the maximum period between the date on which a Transaction is executed and the Expiration Settlement Date or Value Date (as the case may be) for that Transaction.
Option shall mean the right (but not the obligation) of the Buyer, upon exercise, to enter a Transaction to purchase from or sell to the Seller a specified Precious Metal of a specified quantity at a specified price for settlement on a specified date, all of which to be agreed by the Buyer and the Seller.
Purchase Price means the purchase price (per oz t, g or kg of Precious Metal) and whether (a) at a spot price, (b) by reference to the LBMA price or other price benchmark, or (c) as otherwise determined, as agreed by you and us and as specified in the Confirmation.
Physical Delivery Transaction means in respect of a Transaction for unrefined Precious Metal or refined Precious Metal, where the Precious Metal is physically delivered by the Seller to the Buyer.
Required Down Payment means (a) in the case of the Initial Down Payment such amount as agreed between you and us by having regard to anticipated open positions, and (b) in any other case, the aggregate of the Initial Down Payment Percentage to support all open positions.
Security Document shall mean any document as may have been or shall from time-to-time hereafter be executed to secure any obligations of the Client pursuant to this Agreement.
Seller means the seller of Precious Metal and as specified in the Confirmation.
Specifications means the type, form, quantity, weight, and quality agreed by you and us and as specified in the Confirmation.
Trading means any transaction where Precious Metals are bought or sold, or which may include a physical delivery transaction or a non-physical delivery transaction that is being used exclusively for the purposes of hedging of physical inventory.
3 Client Declaration and Experience
(a) Unless it states specifically and to the contrary, you hereby warrant and represent that accounts and services provided by us are to be used for the sole purposes of physical precious metals trading and, or the hedging of physical inventory and any such accounts are not being used for speculative financial trading activities.
(b) You warrant and represent that you enter each Transaction in reliance only upon your own judgment. You acknowledge and understand that we do not provide advice as to whether the Client should enter any Transaction. You should not regard any views or opinions given by us, our employees or representatives as being investment or trading advice. We shall have no liability whatsoever for any view or opinion expressed to you by us, our employees, or representatives regardless of whether such views or opinions are expressed at your specific request.
4 Hedging of Physical Inventory
4.1 Transactions and Settlement
(a) Unless otherwise specified by us, you may enter into Transactions with us on a spot, forward or options basis.
(b) We may agree to enter into any transaction on a physical delivery basis. In which case, we will agree on the terms of the Transaction, including but not limited to quantity, quality, and form of precious metal, it’s price and the date, place, and method of delivery, as is defined in Clause 5 of these terms.
(c) Subject to Clause 4.1.b, actual delivery of Precious Metal pursuant to a Transaction may not be required. The Client shall instruct by 0900hrs London time on the Business Day immediately prior to the Value Date of each Transaction, that it will either:
(aa) Settle the transaction by corresponding payments of money and precious metals to Close Out that Transaction; or
(bb) Roll-over that Transaction by replacing the matured obligations under that Transaction by new obligations on such terms as mutually agreed; or
(cc) Settle the transaction into underlying accounts in precious metals and currencies you hold with us.
(d) In the absence of any instructions from you, we may at our sole discretion:
(aa) Close Out the relevant Transaction or roll-over the relevant Transaction on such terms as we may prescribe and credit or debit the respective Account Balances accordingly, or
(bb) Deem you to have affected a Close-Out transaction with us in respect of the relevant Transaction immediately prior to the Value Date of that Transaction, or
(cc) Handle the relevant Transaction in any such manner as we at our sole discretion deem appropriate.(e) All Options transactions are subject to the following provisions:
(aa) You restate your declaration issued in Clause 3.a.
(bb) We shall agree on the terms of each Option including but not limited to, the Premium, the Strike Price, the relevant Precious Metal and its quantity, the Premium Payment Date, the Expiration Date, and the Expiration Settlement Date.
(cc) Pursuant to an Option transaction, the Seller shall grant an option to the Buyer and the Buyer shall pay to the Seller the Premium on the Premium Payment Date and all other amounts, which may be specified in the related transaction confirmation.
(dd) Unless otherwise agreed:
(i) Payment of the Premium and all other amounts payable by the Buyer shall be made in U.S. dollars; and
(ii) We are authorized by the you to affect such payment by crediting or debiting the Account Balance without further notice to or consent from you.
(ee) An Option may either be a call or a put. A call is an option under which the Seller grants the Buyer the right to buy the relevant Precious Metal at the Strike Price for settlement on the Expiration Settlement Date. A put is an option under which the Seller grants the Buyer the right to sell the relevant Precious Metal at the Strike Price for settlement on the Expiration Settlement Date.
(ff) The Buyer shall be entitled to exercise an Option on or before the Expiration Date by giving written notice of exercise in a form mutually agreed to the Seller which must be received by the Seller no later than 09.30 a.m. New York time on the Expiration Date, or at any such other time as may be mutually agreed between the parties. A written notice of exercise, once given, is irrevocable. The Option is deemed to have expired unless the Seller receives a written notice of exercise from the Buyer prior to the specified expiry time.
(gg) An Option must be exercised in whole but not in part.
(hh) Immediately upon the exercise of an Option, you as Buyer or Seller and we as Buyer or Seller will enter a corresponding Transaction for settlement on the Expiration Settlement Date. Actual physical delivery of the relevant Precious Metal pursuant to a Transaction entered as a result of the exercise of an Option will not necessarily be required unless otherwise agreed between the parties.
(f) On the Value Date of a Close Out Transaction, the profits or losses thereby realized shall be credited to or debited from the relevant Account Balance. The Closed-Out Transaction(s) shall thereupon be regarded as closed positions for the purposes of this Agreement.
(g) We will within one Business Day following the Close Out, roll-over or offsetting of any Transaction, send a written confirmation of the Close Out Transaction or roll-over Transaction to the Client by mail, facsimile, e-mail, or other mutually acceptable electronic means.
4.2 Initial Positive Account Balance
Prior to executing any Transactions, unless otherwise agreed, you will make an Initial Down Payment to us of cash and, or other assets such as gold bars, which may be acceptable at our sole discretion, in order to establish a positive Account Balance in our favour. We may accept or refuse any cash or non-cash assets at our sole discretion, and these may be subject to whatever additional documentation and other arrangements as may be required from time to time.
4.3 Compliance with Religious Laws
We understand that some clients for cultural and/or religious reasons may request that accounts held with us are to be non-interest bearing. Agreement to such a request is at our sole discretion. However, such an agreement shall not mean that your accounts will be free of charges and fees that may apply.
4.4 Account Maintenance Provisions
The standard account maintenance provisions, are as follows:
Initial Down Payment Required %
10%
Account Valuation Loss Limits (USD)
-
Top Up Call Level %
5%
Nominal Volume Limit (USD)
-
Close Out Level %
3%
Maximum Term of Deals
12 months
(a) An Initial Down Payment Percentage is set by us at our sole discretion and may be amended and reviewed from time to time by us. You may at any time request from us a schedule of the Account Maintenance Provisions applicable at that time or an independent review of such provisions. You may not open a new position unless, immediately thereafter, the Client Equity will be at least equal to the aggregate of the Initial Down Payment Percentage required to cover all open positions. For the sake of clarity, this may require you to make additional Down Payments to support existing open positions even though the Client’s Equity has not fallen below the Call Level.
(b) In the event that the Client Equity should fall below the Call Level, we may, but are not obliged to, request the Client to provide additional Down Payments to the extent that is required to make the Client Equity equal to the Required Initial Down Payment Percentage. Such payments must be provided to us in cash and in cleared funds by close of business for transactions in the relevant currency on the Business Day following making such a request. Receipt of such payments will only be confirmed when funds have been received by us in cleared funds, however we may at our sole discretion accept an authenticated bank payment order as proof of payment. In certain circumstances, the Down Payment may be provided in the form of other assets acceptable to us at our sole discretion on such terms as to timing and delivery as may be agreed.
(c) In the event that the Client Equity falls below the Close-Out Level we are entitled, but not obliged, to take whatsoever action it considers appropriate to protect its interests. Such actions may include, but will not be limited to, the Close-Out of Transactions, and we may apply any Account Balances towards any amount due to it. In relation to a Close Out:
(aa) we shall, as circumstances permit, use all reasonable endeavours to notify the Client of our intention to Close Out all or any open positions provided that nothing in this clause shall affect our right to do so.
(bb) It is in your best interests to make suitable prior arrangements with us if you anticipate that you may not be reached at the usual contact number(s) or place of business at any given period. We shall not be responsible or liable for any losses or expenses whatsoever incurred by you because of the inability to contact you.
cc) We may Close Out all or any open positions to such extent and on such terms and at such time as we may in our sole discretion deem fit using the prevailing market rates for the relevant Precious Metals Transactions.
(d) Without prejudice to the foregoing and for the avoidance of doubt, you may apply to reduce the open Precious Metals and related Account Balances at any time in such a way as not to breach any other provisions of this Agreement. Such request shall not be unreasonably refused by us. On the termination or expiry of this Agreement we shall return any Account Balances due to the Client.
(e) The levels of Client Equity and required Down Payments will be monitored systematically and all open positions in Precious Metals will be re-valued at the prevailing market prices on a real time basis. For such purposes, Client Equity and Required Down Payments shall be calculated with reference to the aggregate open positions for all Precious Metals held with us at any given time.
4.5 Account Balances, Assets and Security
(a) In consideration of us agreeing to open and to continue to maintain accounts in your name and to the fullest extent permitted by law, you hereby:
(aa) As the beneficial owner, pledge, charge by way of first fixed charge, assign and release to us all Account Balances and all right, title and interest of the Client whatsoever present and future therein and thereto until the Indebtedness has been unconditionally and irrevocably paid and discharged in full; and
(bb) Authorize us, in addition to our rights of set-off, combination and consolidation of any Account Balance, lien or other right which it may at any time be entitled to, whether by operation of law, contract or otherwise at any time and without prior notice to:
(i) Apply all or any part of the cash comprising the Account Balances, and to sell, liquidate, realize, or otherwise dispose of all or any non-cash assets comprising the Account Balances and apply the net proceeds from sale or disposal.
(ii) Apply any other credit balance (whether then due, matured or otherwise payable) to which you are at any time beneficially entitled (whether solely or jointly with any other person) on any account maintained with we; and
(iii) Apply any other amount whatsoever which may now or at any time hereafter be owing to us by you, whether in the same currency as the Indebtedness, in or towards satisfaction of the Indebtedness; and
(cc) Agree and acknowledges that any cash (and any other asset not yet sold, liquidated, realized, or otherwise disposed of in accordance with Clause 5.a.ii) comprising the Account Balances shall not be repayable or returnable to you or any other person unless and until such time as the Indebtedness has been unconditionally and irrevocably paid and discharged in full.
(dd) Agree that you may not withdraw or substitute security without our prior consent.
(ee) Agree that you will not create or purport to create any security or similar interest in favour of any other party over the Account Balances.
(b) Our rights under this Clause, are separate and independent rights enforceable by us against the Client or any other person notwithstanding and without prejudice to any other rights or the effectiveness thereof.
(c) The assets comprising the Account Balances will be held by us provided that, at our sole discretion, such assets or any part thereof may be held in one or more of our offices, vaults, and, or, to our order, with any bank or financial institution or custodian selected by us.
(d) The security provided by the Client under Clause 4.4.a will be held by us as a continuing security for the payment of the Indebtedness. It will not be satisfied by any intermediate payment or satisfaction of any part of the Indebtedness, will be in addition to and will not in any way be prejudiced or affected by and may be enforced despite any other collateral or security now or hereafter held by or on behalf of us. Any restriction on the right of consolidating security shall not apply to such security.
(e) Without prejudice to our rights under Clause 4.5.a, we are entitled at our absolute discretion at any time, without notice, and at your risk, to convert any currency into another at the Exchange Rate for the purpose of applying the relevant amount in or towards satisfaction of the Indebtedness.
(f) If at any time, in our reasonable opinion, the circumstances affecting the Precious Metals markets concerned are such that a substantial loss is likely to be incurred by you with respect to all or any open position(s) at that time, we are entitled, but not obliged, to Close Out all or such open position(s) to such extent at any time and in such manner as we shall at our sole and absolute discretion deem fit in order to minimize the loss which may be incurred by you.
(g) You hereby irrevocably and by way of security for your obligations under this Agreement appoints us and our officers as you’re your attorney in your name and on your behalf and as we act and deed to effect any Transaction and to perform or execute all such deeds, assurances, agreements, instruments, notices, acts and things which may be lawfully required to give full effect to this Agreement. You hereby ratify and confirm and agree to ratify and confirm any such deeds, assurances, agreements, instruments, notices, acts and things which such attorney may execute or do.
(h) We are entitled, at any time, to apply any balance in any currency standing to the credit of any of your accounts, whether in your name or in the name of any other persons, in or towards satisfaction of any indebtedness owed by you to us in whatever capacity and whether actual or contingent or whether owed solely by you or by you and any other persons. Where there is more than one related Client that has accounts open with us, the Client agrees that we are entitled to exercise the rights in this Clause and apply any balance standing to the credit of any account in your joint names in or towards satisfaction of any indebtedness owed to us by you or more persons.
(i) Without prejudice to any other rights or remedies of we, you agree that we are authorized to exercise a lien over all property of your property from time to time in the possession or control of us for custody or any other reason and whether or not in the ordinary course of our business, with power for us to sell such property to satisfy all or any of the Indebtedness.
(j) The Client shall indemnify us on demand against any and all claims, demand, liabilities, losses, costs, charges, reasonably incurred expenses of reasonable amount (including legal expenses) and damages incurred by us as a consequence of any failure or delay by you to perform any of the obligations pursuant to this Agreement or in connection with the performance by us of this Agreement or the enforcement or preservation of our rights hereunder.
(k) If any moneys paid to us in respect of the Indebtedness are required to be repaid by virtue of any law relating to insolvency, bankruptcy, or dissolution or for any other reason, we shall be entitled to enforce this Agreement as if such moneys had not been paid.
(l) If you create or purport to create any security (whether fixed or floating) over all or any of the Account Balances or any part thereof or if any person levies or attempts to levy any form of process against all or any of the Account Balances or any part thereof, the charge created by clause 4.5.a.aa to the extent that it may be considered as a floating charge, shall automatically and without further notice operate as a fixed charge instantly such event occurs.
5 Physical Delivery Transactions
5.1 Sale and Purchase
In respect to a Physical Delivery Transaction, the Seller agrees to sell and deliver Precious Metal at the Delivery Point, and the Buyer agreed to take delivery of, and pay for, Precious Metal.
5.2 Analysis/Assay, Risk, Insurance: Unrefined Precious Metal
(a) Analysis/Assay by us. Where, in respect of unrefined Precious Metal, we would be the Buyer and the Delivery Point would at our offices, an Analysis/Assay of the Precious Metal will be conducted by us at such office or other location chosen by us. The results of that Analysis/Assay will determine whether we, in our sole discretion, wish thereafter to enter into the Transaction with the Seller. For such time as the Precious Metal is in our possession and control (or our appointed agent), we shall be responsible for insuring the Precious Metal against loss.
(b) Analysis/Assay by Refinery/Analyser. Where, in respect of unrefined Precious Metal, we would be the Buyer and the Delivery Point would be at a Refinery or any other location (but not at our offices), we will make arrangements for the Refinery or Analyser to conduct an Analysis/Assay of the Precious Metal. The results of that Analysis/Assay will determine whether we, in our sole discretion, wish thereafter to enter into the Transaction with the Seller.
(c) Risk. Subject to Clause 5.6, you shall (i) bear all risks associated with the Precious Metal, (ii) be responsible for any losses, costs or charges arising in respect of the Precious Metal and (iii) be responsible for insuring the Precious Metal against all loss, other than where we are responsible pursuant to Clause 5.2(a) or have agreed to be responsible pursuant to Clause 5.2(b) for insuring the Precious Metal.
(d) Insurance. Where, in respect of a Transaction, we are responsible pursuant to Clause 5.2(a) or have agreed to be responsible pursuant to Clause 5.2(b) for insuring the Precious Metal against loss, the following provisions shall apply:
(aa) insurance coverage shall commence the moment at which we provide to you a receipt for the Precious Metal.
(bb) until such time as the Analysis/Assay has been completed, insurance coverage shall be based on your declared value to us of the Precious Metal.
(cc) insurance coverage shall only be in respect of the type of loss which is the subject of coverage under the insurance policy.
(e) Insurance and loss. Where, in respect of a Transaction, (i) we are responsible pursuant to Clause 5.2(a) or have agreed to be responsible pursuant to Clause 5.2(b) for insuring the Precious Metal against loss, and (ii) a loss arises, the following provisions shall apply:
(aa) we shall (i) notify you of the loss, (ii) promptly make a claim under the insurance policy, and (iii) keep you regularly informed of the status of the claim.
(bb) we shall not be responsible or liable for any delay by the underwriters in processing the claim.
(cc) we shall not be responsible or liable for any partial or complete rejection of the claim, other than where this is caused solely by our failure to have paid the insurance premium.
(dd) where the underwriters have rejected (in part or in whole) the claim, we shall only be under reasonable endeavours to contest such rejection with the underwriters but shall be under no obligation to initiate and/or pursue legal proceedings against the underwriters.
(ee) we shall account to you promptly following the receipt of any insurance proceeds (net of the deductible and any other charges) from the underwriters.
5.3 Refined Precious Metal
(a) We as Buyer. Where we are the Buyer of refined Precious Metal, Clauses 5.3(b) to (e) apply.
(b) Analysis/Assay. Where, in respect of refined Precious Metal, we would be the Buyer, an Analysis/Assay of the Precious Metal may be conducted at our discretion. If we decide to conduct that Analysis/Assay, this will be conducted by us (at our offices) or at a Refinery or any other location chosen by us. The results of that Analysis/Assay will determine whether we, in our sole discretion, wish thereafter to enter into the Transaction with the Seller. Where we so wish to enter into the Transaction, the results of such Analysis/Assay (where this applies) will be final and binding on the Parties for that purpose.
(c) Risk. Subject to Clause 5.6, and from such time as the refined Precious Metal is in our possession and control (or our appointed agent), we shall (i) bear all risks associated with the refined Precious Metal, (ii) be responsible for any losses, costs or charges arising in respect of the refined Precious Metal and (iii) be responsible for insuring the refined Precious Metal against all loss.
(d) Insurance. The following provisions shall apply:
(aa) insurance coverage shall commence the moment at which we provide to you a receipt for the refined Precious Metal.
(bb) until such time as the Analysis/Assay (where this applies) has been completed, insurance coverage shall be based on your declared value to us of the refined Precious Metal.
(cc) insurance coverage shall only be in respect of the type of loss which is the subject of coverage under the insurance policy.
(e) Insurance and loss. Where, in respect of a Transaction, a loss arises, the following provisions shall apply:
(aa) we shall (i) notify you of the loss, (ii) promptly make a claim under the insurance policy, and (iii) keep you regularly informed of the status of the claim.
(bb) we shall not be responsible or liable for any delay by the underwriters in processing the claim.
(cc) we shall not be responsible or liable for any partial or complete rejection of the claim, other than where this is caused solely by our failure to have paid the insurance premium.
(dd) where the underwriters have rejected (in part or in whole) the claim, we shall only be under reasonable endeavours to contest such rejection with the underwriters but shall be under no obligation to initiate and/or pursue legal proceedings against the underwriters.
(ee) we shall account to you promptly following the receipt of any insurance proceeds (net of the deductible and any other charges) from the underwriters.
(f) We as Seller. Where are the Seller of refined Precious Metal, Clauses 5.3 (g) to (k) apply.
(g) Specifications and Supporting Evidence. The refined Precious Metal shall conform in all respects with the Specifications under the Confirmation and may, at our discretion, be supported by a statement of conformity issued by us, the Refinery/Analyser, and/or by the COA.
(h) Risk and Insurance. Prior to the Delivery Point, we shall (i) bear all risks associated with the refined Precious Metal, (ii) be responsible for any losses, costs or charges arising in respect of the refined Precious Metal and (iii) (subject to Clauses 5.3(i) to (k)) be responsible for insuring the refined Precious Metal against all loss.
(i) Insurance where the Delivery Point is at a vault, and we agree to supply vaulting services. Where the Delivery Point is at a vault and we have agreed to supply you with vaulting services in respect of the refined Precious Metal from and after the time of delivery to you at the said Delivery Point, we shall continue to be responsible for insuring the refined Precious Metal against all loss, subject to Clauses 5.3 (j) to (k).
(j) Insurance. The following provisions shall apply:
(aa) insurance coverage shall commence the moment at which we provide to you a receipt for the refined Precious Metal.
(bb) until such time as the Analysis/Assay (where this applies) has been completed, insurance coverage shall be based on your declared value to us of the refined Precious Metal.
(cc) insurance coverage shall only be in respect of the type of loss which is the subject of coverage under the insurance policy.
(k) Insurance and loss.
Where, in respect of a Transaction, a loss arises, the following provisions shall apply:
(aa) we shall (i) notify you of the loss, (ii) promptly make a claim under the insurance policy, and (iii) keep you regularly informed of the status of the claim.
(bb) we shall not be responsible or liable for any delay by the underwriters in processing the claim.
(cc) we shall not be responsible or liable for any partial or complete rejection of the claim, other than where this is caused solely by our failure to have paid the insurance premium.
(dd) where the underwriters have rejected (in part or in whole) the claim, we shall only be under reasonable endeavours to contest such rejection with the underwriters but shall be under no obligation to initiate and/or pursue legal proceedings against the underwriters.
(ee) we shall account to you promptly following the receipt of any insurance proceeds (net of the deductible and any other charges) from the underwriters.
5.4 Purchase Price
The Purchase Price shall be as agreed by the Parties and as specified in the Confirmation.
5.5 Documents of Title
The Seller shall on or before the Delivery Date, furnish the Documents of Title to the Buyer.
5.6 Transfer of Title and Risk
Where we are the Buyer, upon the payment by us of the Purchase Price (and whether in whole or in part), unencumbered title, possession, control and risk of the Precious Metal shall be irrevocably and unconditionally transferred to us upon the issuance of the COA.
5.7 Conformance with Specifications
The Seller undertakes that the Precious Metal shall conform in all respects with the Specifications.
5.8 Further Assurance
The Seller shall execute and sign all documents and do such acts and things as shall be reasonably requested by the Buyer in order to establish, perfect, preserve or enforce the Buyer’s unencumbered rights to title, possession, and control of the Precious Metal.
5.9 Indemnity by the Seller
Where we are the Buyer, the Seller shall on demand fully indemnify the Buyer for any loss suffered or incurred by the Buyer in respect of the Precious Metal and any associated financing or hedging, including, without limitation, loss arising from (a) an event which prevents or delays the Buyer from receiving the Precious Metal, (b) any competing claims to title in respect of the Precious Metal, (c) any claim against the Buyer in respect of the Precious Metal and (d) any of the Documents of Title being or being alleged to be incorrect, incomplete or untrue in any respect.
5.10 In respect of each Transaction where we are the Buyer, the determination of the weight/quantity and purity/quality specified in the COA shall be final and binding and shall prevail over all other documents (if any) that refer to weight/quantity and purity/quality.
6 Representations and Warranties
6.1 The representations and warranties in Clauses 7.1 and 7.2 of the General Terms shall be deemed to be repeated by the Party making them on (a) the date of each Transaction, (b) the date of each Confirmation, and (c) on each Delivery Date.
6.2 The Seller further represents and warrants to the Buyer that:
(a) on the Transaction Date and the Delivery Date (i) it is the sole legal and beneficial owner of the Precious Metal, has an unencumbered title to, and the right to sell and the right to possession of, the Precious Metal, (ii) there exists no Encumbrance over the Precious Metal, and (iii) the Buyer takes good title to the Precious Metal free from all Encumbrances and no further action is needed to effect the transfer of unencumbered title to the Buyer;
(b) on the Delivery Date, the Precious Metal (i) conforms with the Specifications, and (ii) is free of any defects;
(c) each sale by the Seller and delivery of the Precious Metal is and will be in full compliance with all applicable laws and regulations, including all laws and regulations relating to environmental protection, health and safety and storage of hazardous goods, and
(d) the Precious Metal does not originate from any conduct of criminal activities.
7 Tax and Sales Tax
7.1 The Seller shall pay or cause to be paid all Tax on or with respect to the delivery of the Precious Metal arising before the transfer of risk and title from the Seller to the Buyer, and the Buyer shall pay or cause to be paid all Tax arising at or after the transfer of title and risk to the Precious Metal from the Seller to the Buyer.
7.2 The Buyer shall pay to the Seller any Sales Tax (if applicable) unless otherwise agreed by the Parties and recorded in the Confirmation.
8 Risk Disclosure Statements
The risk of loss in undertaking Precious Metals and Related Transactions on a Down Payment or leveraged basis can be substantial. You acknowledge that you shall be solely responsible for all losses arising from such Transactions. These risks include but are not limited to the following:
(a) A total loss of the cash or other assets that have been placed with us as security to establish or maintain a position(s) in Precious Metals. If the respective market moves against your positions, you may be called upon by us to make further down payments of money, which may be substantial, as additional security at short notice, to support your positions. Goldstrom has the right to, but is not obliged to, close out your positions without prior notice to the at our sole discretion in any circumstances, including but not limited to cases where you do not provide the required funds to meet a call for additional funds within the prescribed time. Your positions may be closed out at a loss without any further notice being given to you and you will be liable to pay to us further sums to cover any shortfall if the loss exceeds the down payments made.
(b) Under certain market conditions, you may find it difficult or impossible to liquidate a position. Placing contingent orders, such as “stop-loss” or “stop-limit” orders, will not necessarily cap your loss to the intended amounts, since market conditions may make it impossible to execute such orders at the designated price in time or at all.
(c) The use of leverage can lead to substantial losses as well as gains. Therefore, before trading, you should carefully consider whether any such physical Precious Metals Transactions are suitable in the light of your financial position and investment objectives.
(d) You irrevocably confirm that you have a complete understanding of the risks involved and accept these risk disclosure statements.