Euro Pacific Bank

Precious Metals Account Terms and Conditions

1. DEFINITIONS AND INTERPRETATION

 1.1  Definitions

In these Terms unless otherwise required by the context or subject matter:

Account means our internal record of your Precious Metal transactions, Precious Metal balances and Cash balances with us for the purposes of Precious Metals Account;

Allocated Precious Metal means Precious Metal stored with us in accordance with Clause 3.1;

Business Day is a day, excluding a Saturday, Sunday or public holiday, on which banks are open for business in Puerto Rico, Perth, Western Australia and London, United Kingdom and New York, United States of America;

Buy Order means an order made under Clause 7; Cash means immediately available funds;

Collect Order means an order made under Clause 10;

Custodian means the depository institution where Precious Metals are physically held;

Delivery means the act of delivery where custody of the physical Precious Metal passes from one party to the other;

Euro Pacific Bank (“EPB” or “the Bank”) means Euro Pacific Intl. Bank Inc. of 53 Palmeras St, 10th Floor, San Juan 00901, Puerto Rico, and “we”, “us” and “our” have corresponding meanings.

Governmental Agency means any government or any governmental, semi- governmental, administrative, fiscal or judicial body, department, commission, authority, tribunal, agency or other similar entity;

LBMA means the London Bullion Market Association;

Online Banking Application means Euro Pacific Bank’s internet banking system at https://secure.europacbank.com;

Ounce means troy ounce, a measurement of weight equivalent to 31.10348 grams;

Perth Mint means Gold Corporation (ABN 98 838 298 431) of 310 Hay Street, East Perth, WA, 6004, a statutory authority of the Government of Western Australia established under the Gold Corporation Act 1987, trading as “Perth Mint” and any of their related bodies corporate or subsidiaries;

Pool Allocated Precious Metal means Precious Metal stored with us in accordance with Clause 3.2;

Precious Metal means gold, silver and platinum;

Sell Order means an order made under Clause 8;

Precious Metals Account means the following services offered by us subject to these Terms:

  • buying of Allocated Precious Metal, Pool Allocated Precious Metal or Unallocated Precious Metal for the purposes of storage;
  • storage of Precious Metal as Allocated Precious Metal, Pool Allocated Precious Metal or Unallocated Precious Metal at the Storage Facility;
  • delivery to you of Precious Metal stored by us for you; and/or
  • selling of Allocated Precious Metal, Pool Allocated Precious Metal or Unallocated Precious Metal stored by us for the you at the Storage Facility;

Settlement Value means the total Cash amount payable by you to us or by us to you in respect of a transaction including but not limited to the Cash amount of Precious Metals and, in the case of a payment from you to us, fabrication fees, storage fees or other fees or charges;

Storage Facility means a safe storage facility insured, owned or operated by our Custodian or any alternative safe storage facility by our Custodian or us;

Storage Services means the provision by us of storage of Precious Metals manufactured by our Custodian, or at our sole discretion, Precious Metals from other manufacturers;

Terms means these terms and conditions which form the basis of all dealings between you and us in connection with our Precious Metals Account services and related matters;

Unallocated Precious Metal means Precious Metal stored with our Custodian in accordance with Clause 3.3;

You means any person or entity who has electronically signed and submitted an application to open a Precious Metals Account and has agreed to be bound by these terms and conditions, which we have accepted and for whom we maintain an Account.

 1.2  Interpretation

In these Terms:

  • words suggesting the singular include the plural and vice versa;
  • words suggesting a gender include any gender;
  • other parts of speech and grammatical forms of a word or phrase defined in this agreement have a corresponding meaning;
  • an expression suggesting a natural person includes any company, partnership, joint venture, association, corporation or other body corporate and any Governmental Agency;
  • a reference to anything (including, but not limited to, any right) includes a part of that thing;
  • a reference to a statute, regulation, proclamation, ordinance or by law includes all statutes, regulations, proclamations, ordinances or by laws amending, consolidating or replacing it, and a reference to a statute includes all regulations, proclamations, ordinances and by laws issued under that statute;
  • a reference to a party includes that party’s successors and permitted assigns;
  • no provision of these Terms will be construed adversely to a party solely on the ground that the party was responsible for the preparation of these Terms or that provision;
  • a covenant or agreement on the part of two or more persons binds them jointly and severally;
  • transactions under this agreement will be transacted in the lawful currency the United States of America or Australia or of any other country in which we may elect to transact Dealing Services as determined by us from time to time.

2.  APPLICABILITY

You will not be permitted to use Precious Metals Account or our other services if you do not accept these Terms. The general terms and conditions of third parties engaged by us (including without limitation security carriers selected by us where the cost is borne by you) may also apply where applicable.

Should you have your own general terms and conditions, they are expressly excluded.

We advise you to read these terms carefully and to carefully consider whether an investment in Precious Metals is a suitable investment for you. We do not provide any advice on investing in Precious Metals or other financial products.

3. PRECIOUS METAL STORAGE OPTIONS

The Bank may offer the following Precious Metal storage options:

  • Allocated – Specific numbered bars or coins, or in the case of unnumbered bars or coins, specific descriptions of the Allocated Precious Metals.
  • Pool Allocated – Interest in an identified pool of Pool Allocated Precious Metals.
  • Unallocated – Interest in a pool of Unallocated Precious Metal maintained in unsegregated storage on a fungible basis without specific identification.

We charge costs and fees for our services in accordance with Clause 6.2. Our current rates can be found on our website (https://europacbank.com/products/metals-backed-account/#fees).

4.  ACCOUNT OPENING

Before you can make use of Precious Metals Account, you will have to open an Account through our website. When opening an Account, you must strictly follow our stipulated procedures and will be subject to the Terms and Conditions that are applicable to all Euro Pacific Bank Account Holders.

We reserve the right to reject any application for an Account without having to give reasons.

4.1  Bank Account

In order to make use of the Precious Metals Account service, you must have a bank account (“Bank Account”) at Euro Pacific Bank.

4.2  Maintenance of Account Details

You must ensure that your personal and bank account information provided to us is correct and up-to-date at all times. You are required to notify us of any changes within 24 hours by updating your Account details online.

We are not liable for damage arising from incorrect or incomplete information or that you have not informed us in a timely manner of errors, omissions and/or changes in your personal or Bank Account information. All damage or losses arising from incorrect or incomplete information are for your own account and risk.

4.3  Closure or Suspension

We have the right to close Accounts that have not been activated and validated within 30 days of opening the Account, without any prior notice.

4.4  Authority

You authorize us to give your Account information and other personal information held by us to your nominated Asset Manager or Financial Planner and release us from and indemnify us against any claim, loss, damage or liability arising directly, indirectly or in any other manner arising from that disclosure.

4.5  Indemnity

  • You indemnify us against any claim, loss, damage or liability arising directly, indirectly or in any other manner arising from the appointment of, action, inaction, negligence or misconduct of your Asset Manager or Financial Planner.
  • You release us from and indemnify us against any duty or obligation to advise you of any action, inaction, negligence or misconduct of your Asset Manager or Financial Planner other than through statements issued by us in relation to your Account and through the Precious Metals Account website.

5.  DEPOSITING MONEY

We do not extend credit or allow trading on margin in any circumstances. As you can only purchase Precious Metal to the value of money in your Account, you must first deposit money into your Account.

When depositing funds into your Account you must include your account number in the reference or description field of the bank transfer. TRANSFERS CAN ONLY BE  MADE BY A BANK TRANSFER AND MAY NOT BE MADE BY CASH OR ANY CHEQUE DEPOSITS. If you do not explicitly request your bank to charge you for any transfer fees, that your bank or correspondent banks may deduct such fees from the amount you transfer and we will only receive, and credit to your account, the net amount we receive.

If we receive a bank transfer without an Account number we will put the deposit into a holding account until we can identify to which Account the deposit belongs. If, in our opinion, we cannot obtain sufficient clarity to whom the money belongs, it will be transferred back to the Bank Account from which it came.

We reserve the right to charge you for costs we incur returning your money and we will not compensate you for any increases in Precious Metals price while we were attempting to identify to whom the money belonged due to your failure to include your Account number or send the funds from a bank account not in your name or any losses or damage you incur in that regard.

6.  GENERAL TRANSACTION TERMS

Your orders will be processed through our internet banking application at https://secure.europacbank.com. Prior to placing your first order you must familiarize yourself with our procedures and the Online Banking Application.

6.1  Offer and Bid Prices

We publish offer and bid prices within the Online Banking Application.

Offer price is the price at which we are willing to sell Precious Metal to you, that is, the price you will pay when buying Precious Metal from us.

Bid price is the price at which we are willing to buy Precious Metal from you, that is, the price you will receive when selling Precious Metal to us.

The prices of our products and services are subject to developments on the financial markets. Your buying and selling orders are executed at the offer and bid prices published on the website at the time that we execute the order. Prices given or offered are firm and are intended when you offer to buy to sell to constitute an offer by you that simply requires acceptance by us to result in an agreement.

You authorize us to accept your order to offer to buy or offer to sell Precious Metal as an instruction to proceed directly with the settlement of any order that can be fully or partially executed on your behalf.

If we cannot execute transactions in the international Precious Metal market for whatever reason, no prices will be published.

We reserve the right to sell to and buy from you on our own behalf and that while we buy and sell Precious Metals for our own account and for the accounts of our clients, we are not a Precious Metals exchange nor are we a market maker.

6.2  Fees and Charges

Transaction and storage costs are charged on transactions. The rates vary and depend on the quantity and type of Precious Metal that you buy or sell. You will find an  overview      of      the      applicable      transaction      costs      on our website at (https://europacbank.com/products/metals-backed-account/#fees). We are entitled to change our rates at any time. When you place an order an indication is provided of the transaction costs. The rate of the transaction costs is charged over the total transaction amount.

All the costs and fees that we charge for buying, storing, selling, or delivering Precious Metals are paid from your Account. If the balance is insufficient we may sell your Precious Metal to pay for any costs and fees. You may not have a negative balance or set credit limits or trade on margin on your Account.

Any costs incurred in respect of special arrangements requested by you and agreed by us for the Delivery or storage or trading of Precious Metal must be paid by you.

The frequency of calculating the storage fee, duration of the period for which the storage fees are being charged and the date on which the storage fees are payable will be detailed on the Precious Metals Account website. Storage fees are not refundable in any circumstances.

6.3  Placing Orders

An order is irrevocable. After placing an order through the Online Banking Application, you will receive a confirmation of receipt of the order. This confirmation does not constitute a binding acceptance of the instruction to execute the order but is merely acknowledgement of receipt of the order.

Any losses resulting from incorrect, incomplete, unclear or inaccurate orders or instructions from you are for your account and risk.

When placing an order to buy or sell online your order will be considered a Market order.

Market orders do not have a price limit. The purchase or sale always takes place at the price offered by us at the time of the execution of the order. Normally the execution will occur immediately at current market prices as displayed on the website. However, if you place a market order when the Online Banking Application is not quoting a live price, there can be a risk as the price at which the order shall be executed in unknown and can be higher or lower due to fluctuations. At the time of the execution the website will check if the balance in your Account is sufficient to pay for the proposed purchase and if not, it may not be executed or only partially executed.

Market orders always contain a limit with regard to the quantity. You must specify how much Precious Metal you wish to buy or sell. The quantity that you specify is regarded as the maximum quantity. We will attempt to fully realize the maximum quantity that you have specified, however, we give no guarantee whatsoever and we have the right to execute the order partially and by so doing we are not liable to you for any losses in this regard.

We will use our best endeavors to execute your Market orders regarding price and quantity, in accordance with your instructions. We will not be liable to you in any way for any costs, losses, damage and the like incurred by you if we fail to execute your Market order. For example, where international Precious Metal prices suddenly move to a new price level such that trades were not possible at a price between the old and new price, where this is otherwise known as price gapping.

6.4  Order Validation

We will only accept your orders to buy Precious Metal when you have sufficient Cash in your Account (including costs and fees) to be able to settle the whole transaction.

We will only accept your orders to sell Precious Metal when the specified quantity of Precious Metal is stored in your Account at that time and is available to you.

6.5  Refusal to Execute

We have the right, but not the obligation, to refuse in our discretion to execute an order if:

  • the order is incorrect, incomplete, unclear or inaccurate;
  • a condition for the execution of the order has not been satisfied;
  • the balance of Cash or Precious Metal in your Account is insufficient to execute the order; or
  • in our opinion, there are reasons to assume that the execution of the order would violate any applicable regulations or these Terms.

We will promptly notify you by secure message through the Online Banking Application of our refusal to execute an order after the order would have been executed and to notify you about the grounds for refusal as well as about the procedure for the correction of any inaccuracies that have led to the refusal, unless such notification(s) are forbidden by reason of applicable laws and regulations.

We are not responsible or liable for any loss or damage arising from exercise of our rights under this clause.

6.6  Order Execution

Your buying or selling order will be deemed to have been received by us on the Business Day on which we receive the order. If your order is received by us on a day that is not a Business Day, the order will be deemed to have been received on the next Business Day.

If possible, orders are executed on the day we receive them and no later than during the following Business Day, unless you have placed an order for execution on a future Business Day.

6.7  Order Confirmation

We will confirm the execution of an order through the Online Banking Application after each execution. The settlement of an order will result in us displaying to you an order confirmation setting out the quantity of Precious Metal that was traded based on the original order and will state the exact time and price at which the order was executed and the costs and fees charged.

Failure to receive a confirmation of execution may mean the order was not accepted and the responsibility is entirely on you to follow up with us as to what has happened.

6.8  Order Cancellation

An order cannot be revoked where the order has been accepted for processing or has been executed.

You understand and accept that when we have commenced processing your order or has executed your order the order cannot be cancelled.

Orders that are being processed or have been executed cannot be revoked because we have covered the order in the international markets and thus the price has been committed to or locked in.

When we cancel an order that you have placed we will inform you promptly by secure message through the Online Banking Application. We are not liable to you for any loss or expense you will suffer or incur as a result of the cancellation of any order.

6.9  Warranties

You may not grant any security or any third party interest in or over any Allocated Precious Metal, Pool Allocated Precious Metal or Unallocated Precious Metal purchased from and stored with us and any purported grant of any security or any third party interest in or over Allocated Precious Metal, Pool Allocated Precious Metal or Unallocated Precious Metal purchased from and stored with us by you at any time is invalid.

7.  BUY ORDERS

Before placing an order to buy Precious Metals, you must have a sufficient Cash balance in your Account. There are two types of Buy Orders available:

  1. Online Order – An Online Order is an order placed in real-time on the Online Banking Application. The order is quoted and filled at the time that the order is placed, subject to the terms in Section 6.
  2. Offline Order – An Offline Order is an order that is placed during bank business hours (Monday to Friday, 9am – 4pm), and subsequently executed during Perth Mint business hours. The order is quoted and filled at the time of execution, which may vary substantially from the time that the original request was made.

7.2  Settlement of a Buying Order

You pay for your purchase transaction with the Cash balance in your Account so before carrying out the transaction, you must ensure that the balance in your Account is sufficient for the payment of the buying price including all accompanying costs and fees. If the balance in your Account is insufficient, your transaction will not be executed or only partially executed.

Upon receipt of a buy order, an estimate is made of the buying price and the costs and fees payable to us. This estimated amount may be reserved within your Account until such time that the order has been processed. When your order is processed, the amount of your order (purchase price plus the costs and fees) will be debited from your Account.

8.  SELL ORDERS

8.1  Sell Orders

If you wish to sell your Precious Metal you have two options:

  1. Online Order – An Online Order is an order placed in real-time on the Online Banking Application. The order is quoted and filled at the time that the order is placed, subject to the terms in Section 6.
  2. Offline Order – An Offline Order is an order that is placed during bank business hours (Monday to Friday, 9am – 4pm), and subsequently executed during Perth Mint business hours. The order is quoted and filled at the time of execution, which may vary substantially from the time that the original request was made.

8.2  Settlement of a Selling Order

The proceeds from selling Precious Metals are always credited to your Account after deduction of costs and fees.

9.  FAILURE TO SETTLE

You will receive an secure message through the Internet Banking Application if we are unable to debit any costs or fees from your Account. If you fail to pay any sum owed to us by the due date for payment either by failing to replenish the Cash balance of your Account or by failing to provide any other means by which we can successfully collect payment of the costs and fees, we shall be entitled collect those costs and fees at our sole discretion by:

  • liquidating Precious Metal owned by you in your Account in an amount sufficient to pay any amount owed by you, in which case you irrevocably appoint us as your attorney with full power to sell or otherwise deal with Precious Metal in your Account for that purpose; and/or
  • offset the amount owed against any amount due to be paid by us to you.

Your consent shall not be required to initiate such a sale and we shall not be obliged to provide additional notice to you. You authorize us to carry out all legal transactions on your behalf that may be desirable or necessary in relation to the sale and transfer of your Precious Metal as referred to above. All transaction costs shall also be charged when Precious Metals are sold in accordance with this clause.

10.  COLLECT ORDERS

10.1  Collect Orders

You have the right to have your Precious Metal delivered to you but you acknowledge that Precious Metals Account is not a service for those who wish to buy Precious Metal for immediate delivery. Precious Metals Account is a “buy and store” service only and we will charge a minimum of three months’ storage fees. If you wish to take immediate physical possession then please use our Physical Precious Metals service found here: https://europacbank.com/products/physical-precious-metals/.

You may at any time request us to make available all or part of your Precious Metal for collection by, or Delivery to, you (“Collect Order”). Collect orders will only be valid shall if there is sufficient Precious Metal in your Account to cover the Collect Order.

We are not liable or responsible for Delivery delays due to causes beyond our reasonable control, including, but not limited to, causes described in Clause 18.

If you wish to withdraw Precious Metal in physical form you must notify us through the Precious Metals Account website. In order to be able to carry out physical withdrawals, it is required that you provide signed authorization and you may also be required to take other measures that we consider necessary to ensure your Precious Metal is not Delivered to an unauthorized party.

Unallocated Precious Metal and Pool Allocated Precious Metal shall always be collectible in the form of London good delivery bars produced by a company on the good delivery list of acceptable refiners of the London Bullion Market Association. Unallocated Precious Metal and Pool Allocated Precious Metal may also be collectible in the form of Precious Metal products manufactured by our Custodian(s), subject to availability and at our sole discretion.

10.2  Collection Timeframes

By you asking us to arrange shipment you acknowledge that our only obligation is to have physical Precious Metal available from our Custodian(s) or other vendors, at discretion of the Bank, for shipment. We will not be responsible for any delays in the date the shipment leaves our Custodian’s or vendors premises due to causes beyond our reasonable control, including, but not limited to, shipment provider delays in responding to our inquiries on behalf of you to arrange shipment or shipment provider delays in collecting Precious Metal from us.

10.3  Collect Settlement

Orders shall be paid for in advance including, but not limited to, shipping, insurance, handling, fabrication, or outstanding storage fees.

11.  PRIVACY

We are required to record information about you and to store this information and you authorize us to do so. We may destroy your personal information at the end of the statutory retention period.

We will only make use of your confidential information in connection with our agreement with you and in the course of its normal business operations. We shall treat your confidential information confidentially, unless the law or a court decision determines otherwise.

12.  COMMUNICATION

We use the Internet (website and e-mail) as the primary means of communication. In addition, we have the right, but not the obligation, to also make use of other means of communication at our discretion.

For communication through the website, you must log in to the Online Banking Application website using your unique username and confidential password. You will then gain access to your Account, a part of the website that only you have access to, in which the communication between you and us will take place.

For communication by e-mail, you must arrange for a well-functioning and secure e-mail account with a reliable provider, to which only you have access. As part of taking reasonable security measures you must ensure to not log into your e-mail account on or through any publicly accessible computer (such as an internet café) or a publicly available network. Furthermore, you must ensure and guarantee that your e-mail account will accept messages sent by us. As e-mail communication is (similar to regular mail) not secure and not encrypted, we will not include any sensitive information in e-mails and instead will direct you to access your account on the Online Banking Application website to view sensitive information.

You should check your e-mail account regularly and for new messages from us it is recommended that you should check your e-mail account at least every day. You must always respond to the messages sent by us within the period specified in the messages. If you do not respond or do not respond within a suitable time, then any resulting losses shall be completely for your own account and risk.

13.  SECURITY

13.1  Security

We protect your Account by means of a unique username and a confidential password that you must choose yourself. For security reasons you must change your password regularly and use best endeavors to ensure that this password cannot be guessed by third parties.

You are obliged to take all reasonable measures to ensure that your username and confidential password remains confidential and cannot be accessed by third parties. This means that you do not save your username and password on a computer and where you do not memorize your username and password you should always store your username and password separately.

WE WILL NEVER ASK YOU TO PROVIDE YOUR USERNAME OR PASSWORD OTHER THAN WHEN YOU LOG IN TO YOUR ACCOUNT.

IF YOU ARE REQUESTED BY TELEPHONE, BY E-MAIL OR IN ANOTHER MANNER TO PROVIDE YOUR USERNAME OR PASSWORD YOU MUST NOT COMPLY WITH THAT REQUEST, EVEN IF YOU ARE TOLD OR YOU ARE GIVEN THE IMPRESSION THAT THE REQUEST COMES FROM US. WE WILL NEVER MAKE SUCH A REQUEST.

We will not be liable for damage arising from any failure by you to keep your password confidential, that you lose your password or that you choose a password that offers insufficient protection. All damage arising therefrom shall be completely for your own account and risk. You are obliged to notify us immediately when you lose your username or password or you suspect or know or could have known or suspected that your username and password is abused by a non-authorized person. Through a special procedure, a new username and password will be made available to you.

You are obliged to make use of your Account only in accordance with these Terms and to inform us immediately in the event of the loss or theft of your username or confidential password as well as of the unlawful use or unauthorized use of your account.

13.2  Blocking Accounts

We may block your Account based on any grounds we consider reasonable in our discretion including in connection with the security of your Account, your unique username or confidential password, or in connection with the suspicion of unauthorized or fraudulent use of your Account.

In the event of a block of your Account, you will be promptly informed about this by e- mail. If you are informed about the block, then provided legally permissible, you will also be informed about the reason for the block.

As long as your account is blocked, you will not be able to enter into any transactions. As soon as you satisfy us that the grounds for the block no longer exist, the block will be lifted and you will be informed by e-mail about the lifting of the block.

14.  SYSTEM AVAILABILITY

We aim to ensure that the Online Banking Application system remains accessible and available to you during trading hours but cannot give any guarantee in that regard. Maintenance will generally be planned and carried out outside of trading hours. However, due to unforeseen circumstances, it may be necessary to carry out maintenance, repairs or other activities during trading hours.

You are aware and you agree that in the event of a planned and announced interruption of our services, your outstanding order/orders remain/remains in force after our services have been resumed. Any order/orders will be filled by us at the first available opportunity and you accept full responsibility for any losses or damage.

We will not be liable for any losses or damage resulting from any planned or unplanned interruptions of our services.

15.  ERRORS AND CHANGES

No rights can be derived from errors in communications (for example in transaction statements).

Neither you, nor we have the right to derive advantage or profit from errors in the trading system. In the event that an error occurs, both you and we agree that reasonable adjustments may be carried out to remedy the error to arrive at the situation as if this error had not been made and in order to ensure that trading is carried out fairly for both parties.

Only Open orders can be changed. Orders that have been executed or processed are binding and cannot be changed in any circumstances.

16.  RISKS

16.1  Risk

An investment in physical Precious Metal offers an opportunity to make money; however, it also entails risks and is therefore not suitable for every investor. It is important that you gain a good understanding of the characteristics and risks of investing in physical Precious Metal before you make an investment decision. In addition, you should also carefully consider whether an investment in physical Precious Metal is suitable for you in view of your experience, investment horizon, other investments, financial position, risk appetite and other relevant circumstances. We are not responsible for any losses you incur and you indemnify us against any such losses.

In the following paragraphs an indication is provided of the risks that you run and that are relevant taking into account the consequences and the probability thereof. Please note that other risks may exist which have not been addressed.

16.2  Price Risk

The prices of Precious Metal depend on movements in the financial markets. As a result, the value of Precious Metal can fluctuate and the price of your Precious Metal can be lower than the price for which you purchased it. If the value of your Precious Metal drops to zero, you could lose the value of your whole investment.

The price of the Precious Metal at the time that you enter an order through the Precious Metals Account website is not necessarily the price at which the order shall be executed as a delay in the execution can occur. This applies in particular – but not exclusively – to orders that are placed outside of Business Days.

16.3  Exchange Rate Risk

Worldwide, the value of Precious Metal is expressed and traded in US dollars. If you purchase your Precious Metal in other currencies (eg Australian dollars or Euros), the value or your investment is influenced by exchange rate effects. An appreciation of the US dollar versus other currencies has a positive effect, whereas a depreciation has a negative effect.

16.4  Trading Interruptions

Due to special circumstances trading may not be possible and as a result Precious Metal may not be able to be purchased or sold. After trading is resumed, the prices can differ from the prices that were issued before the trading interruption.

Our computer system, website, the Internet, etc., may be temporarily inaccessible or your own computer could malfunction. As a result, it is possible that you are unable to carry out a transaction or unable to carry out a transaction at the desired time or at the desired price. Any losses or damage you suffer are for your account and we have no liability to compensate you for any losses or damage you suffer.

16.5  Operational Risk

It is possible that due to a shortcoming in our procedures transactional errors are not discovered and corrected. We aim to counter this by means of a sound division of  tasks, a well-documented administration organization and supervision of the  compliance with the agreed procedures but will not be liable for any losses or damage you suffer.

16.6  Identity Theft

If your password does not remain confidential and is obtained by a third party, you run the risk that a third party can gain access to your Account. In principle, this third party can only carry out transactions or transfer your funds to your Bank Account as it is not possible to transfer funds to another account. You are fully responsible for all losses, costs, damages and the like which are incurred by you following unauthorized use of your password by any third party.

16.7  Termination of Services

We reserve the right to terminate or discontinue our Precious Metal trading and storage activities. Under clause 22 we will give you a minimum of 30 days’ notice of termination of our services. You have a risk that the timing of such possible termination may lead you to incur losses.

16.8  Laws and Regulations

Amendments to the applicable laws and regulations may be implemented, government measures may be announced or new interpretations of regulators may be published that can have consequences for our business operations and can also lead us to increase our buying and selling fees.

16.9  Your liability and Risk

Any losses that you may suffer as a result of any of the matters referred to in this clause or other risks is for your own account and risk, with the exception of our malicious intent or gross negligence.

17.  LIABILITIES, LOSSES AND INDEMNITIES

17.1  Guarantee By the Treasurer of Western Australia

For Precious Metals where the Custodian is the Perth Mint: Section 22(1) of the Gold Corporation Act 1987 provides as follows: “The payment of —

  • the cash equivalent of gold due, payable and deliverable by Gold Corporation, the Mint or GoldCorp under this Act; and
  • all moneys due and payable by Gold Corporation in respect of the exercise of the power to buy, borrow or otherwise acquire and to sell, lend or otherwise dispose of, deal in and hold Australian and foreign currency,

is guaranteed by the Treasurer, in the name and on behalf of the Crown in right of the State.”

Under Section 3(2) of the Gold Corporation Act 1987:

“A reference in this Act to gold shall be construed as including a reference to silver, other precious metals, precious stones and other minerals.”

17.2  Liability

Except in the event of our sole malicious intent or gross negligence, we shall never be liable for losses associated with or arising from the purchase or sale of Precious Metals, the holding of Precious Metals with us, the reservation or transfer of Precious Metals or the making of payments or receipt of monies.

If loss, theft or another manner of destruction of your Precious Metal should occur and we are held by a court to be liable for this, we may at our sole discretion either pay the compensation in Cash or in Precious Metal of a similar kind and a similar value.

We will not in any circumstances be liable to you for any amount in excess of the value of the Precious Metal recorded in your Account at the relevant time, such value to be determined by using the first Precious Metal benchmark price as set by London Bullion Market Association on the relevant Business Day.

17.3  Indemnity

You acknowledge and agree:

  • to pay, indemnify and save harmless us from and against any tax or other levy, including any goods or services tax, imposed by any Governmental Agency, now or in the future, in respect of ownership, transfer, liquidation or Delivery of your Precious Metal or any services provided by us to you; and
  • that this agreement does not constitute an invitation to buy or the solicitation of an offer to sell services or products to any person or entity in any state, country or jurisdiction where such an offer or solicitation is unlawful,
  • to indemnify us against all claims of third parties arising from or in connection with our dealings with you.

17.4  Consequential Loss or Damage

We shall not be liable to you and you waive and release any claim against us for consequential loss or damage (including but not limited to loss of revenue or profit, (actual or anticipated), loss of use of capital, delay costs) suffered by you or any of your related bodies corporate, however and whenever arising and whether arising under or out of this agreement.

18.  FORCE MAJEURE

18.1  Definition

Under this agreement, Force Majeure means any act, event or cause that is beyond  our reasonable control, including but not limited to: an act of God, act of any Governmental Agency, accident of navigation, war (whether declared or not),  sabotage, riot, insurrection, civil commotion, national emergency (whether in fact or law), martial law, fire, lightning, flood, earthquake, landslide, storm or other severe weather conditions, explosion, power shortage, strikes, lock-outs or other industrial disturbance (whether or not involving employees of the party concerned),  uncontrollable delays in transportation, inability to obtain any necessary equipment, facilities or qualified employees, epidemic, quarantine, radiation or radioactive contamination, the effect of any applicable law, orders, rules or regulations, computer  or internet disruption or failure, employee absence, failure to act by third parties or market delay or disruption.

18.1  Scope

If we are unable, wholly or in part, to perform any of our obligations under this agreement as a result of Force Majeure, then:

  • we shall give you notice of the Force Majeure and, as far as we know, the probable extent to which we shall be unable to perform, or be delayed in performing our obligations;
  • these obligations shall be suspended, for so far and so long as we are affected by the Force Majeure; and
  • we shall resume performance of our obligations as soon as we are no longer affected by the Force Majeure.

19.  DEATH

In the event of your death, we must be informed as soon as possible. We may continue to execute orders previously placed by you or after your death by persons on your behalf. We may continue to execute orders that have been given to us before we have been informed of your death if we could not reasonably have been able to prevent the execution.

If we are informed that you have died, we will block your Account until it has been proved in our opinion that you have died as well as who is legally authorized to act on your estate. Only when this is sufficiently clear, shall we proceed to settle the Account together with your executor. We have the right to charge costs for settlement of your estate.

20.  BANKRUPTCY

You must inform us in writing immediately if you are declared bankrupt.

21.  LEGALITY OF OUR SERVICES

You may only make use of our services if and insofar as this is permitted by law in your country. If one or several of our services are not permitted in your country, you are not permitted to make use of these services.

You must verify whether the services offered by us are permitted in your country. We have no obligation to carry out investigations into the legality of our services in your country or to provide information on such. We are entitled to refuse services to you if we consider that our services are not permitted in your country; however, we are not obliged to do so.

In the event that you make use of our services while this is not permitted in your country, then all negative effects of this are exclusively and wholly for your own account and risk. If we suffer any losses or damage as a result then you shall be liable for this.

22. AMENDMENTS AND TERMINATION

We reserve the right to change our Terms and any other documentation regarding the Precious Metals Account service upon notice to you. Continued use of our services by you after receipt of such notice shall constitute acceptance of the new terms and conditions.

We may terminate our agreement with you at any time. If this agreement is terminated you must by the date of termination sell or take Delivery of all your Precious Metal held by us.

23.  TRANSFER OF RIGHTS

You may not assign, transfer or grant security over your interest in this agreement without our prior written consent.

Your Precious Metal may not be pledged, encumbered or assigned by you without our prior written consent.

You shall keep the Precious Metal held in storage by us free from any liens, encumbrances, charges or claims of third parties, other than any encumbrance or claim created by or pursuant to this agreement, unless otherwise agreed by both of us.

24.  SEVERABILITY AND JURISDICTION

If any provision of your agreement with us becomes invalid by law, regulation or proceeding, all other provisions remain in full force and effect.

The agreement evidenced by these Terms constitutes the entire contract between you and us with respect to the transactions contemplated in these Terms and supersedes and extinguishes all prior oral agreements and understandings between you and us with respect to those transactions.

The agreement evidenced by these Terms may only be varied by an instrument in writing executed by you and us.

The agreement evidenced by these Terms is governed by the laws of Puerto Rico and the parties submit to the non-exclusive jurisdiction of the courts of that State and courts which hear appeals those courts.

25.  WAIVERS AND REMEDIES CUMULATIVE

No failure to exercise and no delay in exercising any right power or remedy under these Terms operate as a waiver, nor shall any single or partial exercise of any right, power or remedy preclude any other or further exercise of that or any other right, power or remedy.

The rights, powers and remedies provided to us under these Terms are cumulative and are not exclusive of any rights, powers or remedies provided by law.