This General Terms and Conditions of Business exclusively govern all transactions relating to Precious Metals Transactions, in as much as they support the trading in and hedging of physical precious metals between Twenty Four Gold DMCC (“24Gold”) and the Customer. These terms and conditions supersede and replace the terms of any previous editions.
2.1. Unless it states specifically and to the contrary, The Customer hereby warrants and represents that the Precious Metals and Related Accounts provided by 24Gold to the Customer are to be used for the sole purposes of physical bullion trading and, or, the hedging of physical inventory and any such accounts are not being used for speculative financial trading activities.
2.2. The Customer warrants and represents that it enters into each Transaction in reliance only upon its own judgment. The Customer acknowledges and understands that 24Gold does not provide advice as to whether or not the Customer should enter into any Transaction. The Customer should not regard any views or opinions given by 24Gold, its employees or representatives as being investment or trading advice. 24Gold shall have no liability whatsoever for any view or opinion expressed to the Customer by 24Gold, its employees or representatives regardless of whether such views or opinions are expressed at the specific request of the Customer.
3.1. Prior to executing any Transactions under this Agreement the Customer will, unless otherwise agreed with 24Gold, make an Initial Down Payment to 24Gold of cash and, or, other assets which may be acceptable at the sole discretion of 24Gold, in order to establish a positive Account Balance in favour of 24Gold before the Customer enters into a Transaction. 24Gold may accept or refuse any cash or non-cash assets at its sole discretion and these may be subject to whatever additional documentation and other arrangements as may be required from time to time.
4.1. At its sole discretion 24Gold may pay Interest to the Customer on Accounts held at 24Gold, and 24Gold may require the Customer to pay Account Interest to 24Gold. For the sake of clarity, any Account Interest shall accrue on a daily basis and be capitalized by 24Gold and credited to or debited from the relevant Account Balance on a monthly basis, or at an alternative and mutually agreed period. Interest may also be charged by 24Gold on any overdue sums due to 24Gold and such interest may be debited as Account Interest.
4.2. 24Gold understands that some clients for cultural and, or, religious reasons may request that Accounts held at 24Gold are to be Non-Interest Bearing and 24Gold may at its sole discretion agree to such a request. However, such agreement by 24Gold shall not mean that the Customer’s Accounts held at 24Gold will be free of charges that may apply from time to time.
5.1. An Initial Down Payment Percentage is set by 24Gold, that is subject to change at any time by 24Gold at its sole discretion, and is set out in Annex No. 1. The Customer may at any time request from 24Gold a schedule of the Initial Down Payment Percentage applicable at that time. The Customer may not open a new position unless, immediately thereafter, the Customer 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 the Customer to make additional Down Payments to support existing open positions even though the Customer’s Equity has not fallen below the Call Level.
5.2. In the event that the Customer Equity should fall below the Call Level, 24Gold may, but is not be obliged to, request the Customer to provide additional Down Payments to the extent that is required to make the Customer Equity equal to the Required Initial Down Payment Percentage. Such payments must be provided to 24Gold in cash and in cleared funds by close of business for transactions in the relevant currency on the Business Day following 24Gold making such a request. Receipt of such payments will only be confirmed when funds have been received in the Customer’s account held at 24Gold, however 24Gold may at its 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 24Gold at its sole discretion on such terms as to timing and delivery as may be agreed.
5.3. In the event that the Customer Equity falls below the Close-Out Level 24Gold is entitled, but not obliged, to take whatsoever action it considers appropriate in order to protect its interests. Such actions may include, but will not be limited to, the Close-Out of Transactions, and 24Gold may apply any Account Balances towards any amount due to it. In relation to a Close Out:
5.3.1. of 24GOLD’s intention to Close Out all or any open positions provided that nothing in this Clause 5.3 shall affect 24GOLD’s right to Close Out pursuant to Clauses 6.6 and/or 18.1.2.
5.3.2. It is in the Customer’s best interest to make suitable prior arrangements with 24Gold if the Customer anticipates that it may not be reached at the usual contact number(s) or place of business at any given period of time. 24Gold shall not be responsible or liable for any losses or expenses whatsoever incurred by the Customer as a result of 24GOLD’s failure to contact the Customer.
5.3.3. 24Gold may Close Out all or any open positions to such extent and on such terms and at such time as 24Gold may in its sole discretion deem fit using the prevailing market rates for the relevant Precious Metals Transactions.
5.4 Without prejudice to the foregoing and for the avoidance of doubt, the Customer may apply to 24Gold 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 24Gold. On the termination or expiry of this Agreement 24Gold shall return any Account Balances due to the Customer.
5.5. The levels of Customer 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, Customer Equity and Required Down Payments shall be calculated with reference to the aggregate open positions for all Precious Metals held with 24Gold at any given time.
6.1. In consideration of 24Gold agreeing to open and to continue to maintain accounts in the name of the Customer, and to the fullest extent permitted by law The Customer hereby:
6.1.1. As beneficial owner pledges, charges by way of first fixed charge, assigns and releases to 24Gold all Account Balances and all right, title and interest of the Customer whatsoever present and future therein and thereto until the Indebtedness has been unconditionally and irrevocably paid and discharged in full; and
6.1.2. Authorizes 24Gold, in addition to 24GOLD’s 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:
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; and
Apply any other credit balance (whether or not then due, matured or otherwise payable) to which the Customer is at any time beneficially entitled (whether solely or jointly with any other person) on any account maintained with 24Gold; and
Apply any other amount whatsoever which may now or at any time hereafter be owing by 24Gold to the Customer, whether or not in the same currency as the Indebtedness, in or towards satisfaction of the Indebtedness.
6.1.3. Agrees and acknowledges that any cash (and any other asset not yet sold, liquidated, realized or otherwise disposed of in accordance with Clause 6.1.2) comprising the Account Balances shall not be repayable or returnable to the Customer or any other person unless and until such time as the Indebtedness has been unconditionally and irrevocably paid and discharged in full.
6.1.4. Agrees that the Customer may not withdraw or substitute security without the prior consent of 24Gold.
6.1.5. Agrees that the Customer will not create or purport to create any security or similar interest in favour of any other party over the Account Balances.
Independent rights enforceable by 24Gold against the Customer or any other person notwithstanding and without prejudice to any other rights or the effectiveness thereof.
6.3. The assets comprising the Account Balances will be held by 24Gold provided that, at the sole discretion of 24Gold exercisable by notice to the Customer, such assets or any part thereof may be held in one or more of 24GOLD’s offices and, or, to the order of 24Gold with any bank or financial institution or custodian selected by 24Gold.
6.4. The security provided by the Customer under Clause 6.1. will be held by 24Gold 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 24Gold. Any restriction on the right of consolidating security shall not apply to such security.
6.5. Without prejudice to its rights under Clause 6.1, 24Gold is entitled at its absolute discretion at any time, without notice to, and at the risk of the Customer, 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.
6.6. If at any time, in the reasonable opinion of 24Gold, the circumstances affecting the Precious Metals markets concerned are such that a substantial loss is likely to be incurred by the Customer with respect to all or any open position(s) at that time, 24Gold is entitled, but not obliged, to Close Out all or such open position(s) to such extent at any time and in such manner as 24Gold shall at its sole and absolute discretion deem fit in order to minimize the loss which may be incurred by the Customer.
6.7. The Customer hereby irrevocably and by way of security for its obligations under this Agreement appoints 24Gold and its officers as the attorney of the Customer and in its name and on its behalf and as its acts and deeds to effect any Transaction and to do or execute all such deeds, assurances, agreements, instruments, notices, acts and things which may be lawfully required to give full effect to this Agreement. The Customer hereby ratifies and confirms and agrees to ratify and confirm any such deeds, assurances, agreements, instruments, notices, acts and things which such attorney may execute or do.
6.8. 24Gold is entitled, at any time, to apply any balance in any currency standing to the credit of any of the Customer’s accounts, whether in the Customer’s name or in the names of the Customer and any other persons, in or towards satisfaction of any indebtedness owed by the Customer to 24Gold in whatever capacity and whether actual or contingent or whether owed solely by the Customer or owed by the Customer and any other persons. Where there is more than one related Customer that has accounts open with 24Gold, the Customer agrees that 24Gold is entitled to exercise the rights in this Clause and apply any balance standing to the credit of any account in the joint names of the Customers in or towards satisfaction of any indebtedness owed to 24Gold by one or more of the Customers.
6.9. Without prejudice to any other rights or remedies of 24Gold, the Customer agrees that 24Gold is authorized to exercise a lien over all property of the Customer from time to time in the possession or control of 24Gold for custody or any other reason and whether or not in the ordinary course of 24GOLD’s business, with power for 24Gold to sell such property to satisfy all or any of the Indebtedness.
6.10. The Customer shall indemnify 24Gold 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 24Gold as a consequence of any failure or delay by the Customer to perform any of the Customer’s obligations pursuant to this Agreement or in connection with the performance by 24Gold of this Agreement or the enforcement or preservation of 24GOLD’s rights hereunder.
6.11. If any moneys paid to 24Gold 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, 24Gold shall be entitled to enforce this Agreement as if such moneys had not been paid.
6.12. If the Customer creates or purports 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 6.1.1, 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.
7.1. The Customer may submit a Consignment Request to 24Gold for the supply of a quantity of Precious Metal up to but not exceeding the Limit that has been agreed by 24Gold as specified in Annex No. 1. 24Gold may, at its absolute sole discretion, agree to deliver Consignment Precious Metal to the Customer at mutually agreed locations or for the Precious Metal to be made available by 24Gold to the Customer at its offices, vaults or other locations, as Consignment Stock within the terms of this Agreement.
7.2. Once a Consignment Request has been received by 24Gold, and all the relevant documentation has been completed, the Customer may price all or any part of the agreed consignment subject to the Account Valuation Loss Limit as specified in Annex No.1. If this Account Valuation Loss Limit is exceeded the Customer agrees that it will make an immediate payment for the equivalent amount of cash to bring the position back within the agreed limits.
7.3. The Consignment limit approved by 24Gold may be denominated in either ounces or currency, with the latter typically in US dollars.
7.4. If the agreed limit is expressed in ounces the amount Consignment Precious Metal supplied must not exceed the agreed limit. If a breach of this limit occurs the Customer will immediately price and pay for the excess amount of Precious Metal in order to bring the consignment back within the agreed limit.
7.5. If the Consignment Limit is expressed in currency (typically US dollars) the following applies. The Customer’s Consignment account is systematically monitored on a real time basis. If the market price of the Precious Metal supplied rises and as a result the value of the Consignment Stock increases before the Precious Metal has been received and paid for by the Customer, thereby causing the Customer’s Consignment Limit in US dollar terms to be exceeded, the Customer will either return some of the Consignment Stock or pay in to their account the equivalent amount of cash in order to bring the value of the consignment stock to within the agreed limits.
7.6. The Customer undertakes that prior to the expiry of the Consignment Period it will either:
7.6.1. Pay an agreed amount to 24Gold to price and pay for whole of the Consignment Stock, or
7.6.2. Return that part of the Consignment Stock that has not been priced and paid for to 24GOLD’s vaults, or
7.6.3. The Customer may request an extension to the Consignment Period, and 24Gold may at its sole and absolute discretion agree to such an extension and apply such charges as 24Gold considers appropriate.
7.7. The Customer may submit one or more Consignment Requests providing that the cumulative amount of Precious Metal on Consignment does not exceed the limits 24Gold has set for the Customer. 24Gold may at its sole discretion request the Customer to pay Consignment Interest at the interest rate specified in Annex No. 1.
7.8. The Customer may be required to provide 24Gold with a mutually acceptable form of security against the Consignment Precious Metal as may be agreed between the parties from time to time. 24Gold reserves the right at its sole discretion to execute its rights over such security in the event that the Customer does not fulfil its obligations in respect to purchasing the Consignment Stock from 24Gold.
8.1. The terms and conditions of any Consignments provided by 24Gold to the Customer will be confirmed to the Customer in writing prior to any Consignment taking place. The terms and conditions as specified in Annex No. 1 includes the approved Consignment limit; any collateral requirements to support the Consignment; the period of the Consignment; and the interest rate (if applicable) to be applied to the Consignment.
9.1. The Customer may enter into Transactions with 24Gold for the sale and purchase of Precious Metals up to the Maximum Nominal Volume Limits of the Facility and within the Maximum Term of the Facility as set out in Annex No.1 These transactions may include spot, forwards and options in as much as they relate to the hedging or mitigation of price risk for underlying physical precious metals. Each Transaction is subject to the terms and conditions set out in this Agreement and in the confirmations relating to such Transaction referred to in Clause 9.6.
9.2. Notwithstanding that the Customer has satisfied the Customer’s obligations under this Agreement, 24Gold at its sole discretion may decide to accept or reject instructions given by the customer in respect of Transactions and is not obliged to enter into any Transaction.
9.3. All Precious Metals Prices, Foreign Exchange and Interest Rates, Physical Premiums or Discounts are provided for reference or information purposes only, unless 24Gold makes it explicitly clear to the Customer at the time that any prices, rates or Premiums/Discounts quoted by 24Gold to the Customer are actual Dealing Prices, Exchange or Interest Rates, or Premiums/Discounts at which 24Gold is prepared to enter into Transactions. 24Gold is under no obligation whatsoever to enter into Transactions at such prices, rates or premiums/discounts.
9.4. The Customer may give instructions to 24Gold in respect of Transactions by telephone, facsimile, E-mail, Reuters Dealing, Reuters Messenger, Bloomberg, E-Trading platforms or other electronic or such other means, which may be specified by 24Gold subject to the execution of the relevant documents. 24Gold will not consider these instructions to have been received unless the Customer provides them in a manner satisfactory to 24Gold and further that 24Gold confirms receipt of such instructions.
9.5. Any instruction by the Customer in respect of a Transaction once given is irrevocable unless 24Gold has provided prior written consent to the contrary. 24Gold is entitled to rely on its belief in good faith that any such instruction, given by whatsoever means, emanates from the Customer, whether or not such instruction is given personally or authorized by the Customer and notwithstanding any error or misunderstanding or lack of clarity in the terms of any such instructions. The Customer agrees to be bound by all instructions which 24Gold believes in good faith to have been given or authorized by the Customer and shall indemnify 24Gold for all Indebtedness, liabilities, obligations, losses, damages, penalties, actions, suits, judgments, costs, charges and expenses arising from or in connection with any Transactions or action taken by 24Gold or its correspondents and agents in accordance with or pursuant to any such instructions. The benefit of this indemnity is held by 24Gold for itself and on behalf of its correspondents and agents.
9.6. 24Gold shall within one Business Day following completion of a Transaction send by mail and/or by:
9.6.1. Facsimile, e-mail or other electronic means to the Customer a written confirmation of the Transaction.
9.6.2. In addition, statements will be supplied by 24Gold to the Customer in real-time to the customer on our platform.
9.6.3. Any written confirmation or statement is conclusive and deemed to be accepted by the Customer unless the Customer submits an objection in writing within 24 hours in the case of a confirmation, and five Business Days in the case of a statement, after these have been transmitted to the Customer by mail or facsimile, e-mail or other electronic means. 24GOLD’s records shall, in all respects, be conclusive unless and until the contrary has been established.
9.7. The Customer will appoint Authorized Persons to act on its behalf and authorizes and instructs 24Gold to act on the instructions given by the Customer or by the Authorized Persons with respect to sale and purchase transactions. The Customer will give and ensure that the Authorized Persons give clear instructions to 24Gold when conducting such sale and purchase transactions, and these instructions must be clearly distinguished from requests for indicative prices, rates or Premiums.
10.1. The Maximum Facility is subject to periodic reviews based on updated financial information and Precious Metals market conditions. Notwithstanding any provisions in this Agreement, 24Gold has the right at its sole discretion to modify, cancel or terminate the Maximum Facility at any time, to Close Out any and all Transactions in whole or in part and to demand immediate repayment of any and all Indebtedness.
10.2. The Customer shall provide or procure any person to provide such further security as 24Gold may require from time to time.
11.1. Unless otherwise specified by 24Gold, the Customer may enter into Transactions with 24Gold on a spot, forwards or options basis.
11.2. 24Gold may agree with the Customer to enter into any Transaction on a physical delivery basis. In that case, 24Gold and the Customer will agree on the terms of the Transaction including but not limited to, the quantity, quality and form of the Precious Metal to be delivered, its price and Premium or Discount, and the date, place and method of delivery.
11.3. Except as provided in Clause 11.2, actual delivery of Precious Metal pursuant to a Transaction may not be required. The Customer shall instruct by 13.00 Dubai time on the Business Day immediately prior to the Value Date of each Transaction, that it will either:
11.3.1. Settle the transaction by corresponding payments of money and precious metals to Close Out that Transaction; or
11.3.2. Roll-over that Transaction by replacing the matured obligations under that Transaction by new obligations on such terms as the Customer and 24Gold shall agree; or
11.3.3. Settle the transaction into underlying accounts in precious metals and currencies held by the customer with 24Gold.
11.4. In the absence of any instructions from the customer, 24Gold may at its sole discretion:
11.4.1. Close Out the relevant Transaction or roll-over the relevant Transaction on such terms as 24Gold may prescribe and credit or debit the respective Account Balances accordingly, or
11.4.2. Deem the Customer to have effected a Close-out Transaction with 24Gold in respect of the relevant Transaction immediately prior to the Value Date of that Transaction, or
11.4.3. Handle the relevant Transaction in any such manner, as 24Gold, at its sole discretion, considers appropriate.
11.5. All Options transactions are subject to the following provisions:
11.5.1. The Customer hereby warrants and represents and 24Gold accepts that any Options transactions that The Customer enters into with 24Gold is solely for the purposes of hedging or mitigating the price risk of underlying physical precious metals and the transactions are not being undertaken for financial speculation.
11.5.2. 24Gold and The Customer 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.
11.5.3. 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.
11.5.4. Unless otherwise agreed between 24Gold and the Customer:
Payment of the Premium and all other amounts payable by the Buyer shall be made in U.S. dollars; and
24Gold is authorized by the Customer to effect such payment by crediting or debiting the Account Balance without further notice to or consent from the Customer.
11.5.5. 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.
11.5.6. 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.
11.5.7. An Option must be exercised in whole but not in part.
11.5.8. Immediately upon the exercise of an Option, 24Gold and the Customer will enter into a corresponding Transaction for settlement on the Expiration Settlement Date. Actual physical delivery of the relevant Precious Metal pursuant to a Transaction entered into as a result of exercise of an Option will not be necessarily be required unless otherwise agreed between the parties.
11.6. 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.
11.7. 24Gold 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 Customer by mail, facsimile, e-mail or other mutually acceptable electronic means.
12.1. All payments due to be made by the Customer under or pursuant to this Agreement shall be made in immediately available funds at the agreed time and date and no payment will be recorded as a credit to the Customer’s account until 24Gold has received the funds with good value in its bank account.
12.2. All payment to be made by the Customer under or pursuant to this Agreement shall be made in full, without any set-off, deduction or withholding whatsoever. If by law the Customer is unable to make any payment without a deduction or withholding being made, it shall forthwith pay to 24Gold such additional amount so that the net amount received and retained by 24Gold will equal the full amount of funds, which 24Gold expected to receive had no such deduction or withholding been made.
12.3. No payment to 24Gold under this Agreement pursuant to any judgment or order of any court or otherwise shall operate to discharge the obligations of the Customer under this Agreement unless and until payment in full has been received by 24Gold in the currency in which such payment was due, this is referred to in this agreement as the “currency of obligation”. If the amount of the currency of obligation fall shorts of the amount expected to be received by 24Gold due to the Exchange Rate conversion, 24Gold shall have a separate and additional course of action against the Customer for the recovery of such sums equal to the amount of the shortfall.
13.1. 24Gold may designate a password to the Customer or (if applicable) each Authorised Person for identification purposes.
13.2. The Customer or the relevant Authorised Person may change his password at any time but any change shall be effective only if accepted by 24Gold.
13.3. The Customer and each Authorised Person shall act in good faith, exercise reasonable care and diligence in keeping his password in secrecy. At no time and under no circumstances shall the Customer or any Authorised Person disclose his password to any other person.
13.4. The Customer shall be fully responsible for any accidental or unauthorised disclosure to any other person of the password of the Customer and/or any Authorised Person and shall bear the risks of any password being used by unauthorised persons or for unauthorised purposes.
13.5. Upon notice or suspicion of any password being disclosed to or obtained by any unauthorised person or any unauthorised instructions being given, the Customer shall notify 24Gold in person as soon as practicable or by telephone at such telephone number as 24Gold may from time to time prescribe (and 24Gold may ask the Customer to confirm in writing any details given). Upon receiving such notice, 24Gold shall suspend its services within 24-hours and no further instructions shall be accepted until 24Gold has designated a new password to the Customer or the relevant Authorised Person. The Customer and/or the relevant Authorised Person shall follow such procedures and/or complete such forms as 24Gold may prescribe for such purpose.
13.6. Provided that the Customer and the Authorised Person have complied with Clauses 13.3 and 13.5, the Customer shall not be liable for any Transactions effected after 24Gold has actually received the notice referred to in Clause
13.5 and account has been suspended.
However, the Customer shall remain liable for all Transactions whether or not authorised by the Customer prior to 24GOLD’s actual receipt of such notice.
14.1. Customer understands the importance of its role in preventing misuse of Customer’s accounts through the Platform and Customer agrees to promptly examine its periodic statement for each of Customer’s accounts as soon as the statement is received or the statement becomes available. 24Gold strongly recommends daily review of all account activity, including reviewing check images online. Customer agrees to protect the confidentiality of its account and account details, and personal identification information. Customer understands that personal identification information alone, or together with information related to its account(s), may allow unauthorized access to Customer’s account(s). Passwords and user names are intended to provide security against unauthorized entry and access to Customer’s account(s). Notwithstanding 24GOLD’s efforts to ensure that the system is secure, Customer acknowledges that the Internet is inherently insecure and that all data transfers, including electronic mail, occur openly on the Internet and potentially can be monitored and read by others. Customer cannot and does not warrant that all data transfers utilizing the Platform, or email transmitted to and from Bank, will not be monitored or read by others. Customer shall be solely responsible for establishing, maintaining and following such security protocols as it deems necessary to ensure that data transmitted directly to 24Gold are intact, secure and confidential until received by 24Gold.
15.1. Any communication from the Customer to 24Gold shall be deemed irrevocable and shall not be effective until confirmation of receipt has been given by 24Gold. In addition and without prejudice to the specific means of communication set out in the other provisions of this Agreement, any communication by 24Gold to the Customer shall be deemed to have been received as soon as if it has been personally delivered or sent by other means of communication to the address of the Customer stated above or as from time to time notified in writing to, and received by, 24Gold. Where the Customer comprises more than one person, any communication by 24Gold to the Customer shall be effective if made to any of them and any communication by the Customer to 24Gold shall be effective only if made by each of them.
15.2. The Customer may give instructions to 24Gold by telephone, SMS, facsimile, e-mail, Reuters Dealing, Reuters Messenger, Bloomberg, SWIFT, E-Trading platforms or other electronic or such other means, which may be specified by 24Gold subject to the execution of the relevant documents. 24Gold will not consider these instructions to have been received by unless the Customer provides them in a manner satisfactory to 24Gold and further that 24Gold has confirmed receipt of such instructions.
15.3. Any instruction by the Customer once given is irrevocable and 24Gold is entitled to rely on its belief in good faith that any such instruction, given by whatsoever means, emanates from the Customer, whether or not such instruction is given personally or authorized by the Customer and notwithstanding any error or misunderstanding or lack of clarity in the terms of any such instructions. The Customer agrees to be bound by all instructions which 24Gold believes in good faith to have been given or authorized by the Customer and shall indemnify 24Gold for all Indebtedness, liabilities, obligations, losses, damages, penalties, actions, suits, judgments, costs, charges and expenses arising from or in connection with any Transactions or action taken by 24Gold or its correspondents and agents in accordance with or pursuant to any such instructions. The benefit of this indemnity is held by 24Gold for itself and on behalf of its correspondents and agents.
16.1. This Agreement and the confirmation relating to each and every Transaction shall together constitute a single agreement between the Customer and 24Gold. The Annexes to this Agreement form an integral part of this Agreement. In the event of conflict inter se, the confirmation shall take precedence over any relevant Schedule, which shall in turn take precedence over this Agreement.
17.1. 24Gold shall enter into Transactions as principal only and 24Gold may assign any of its rights under this Agreement without the Customer’s consent.
17.2. The Customer warrants that it enters into this Agreement and will enter into all Transactions as a principal only and not as a broker, trustee or agent. This Agreement and every Transaction shall be personal to the customer and shall not be assignable (whether absolutely, by way of security or otherwise) by the Customer and no third party interest whatsoever shall be permitted to arise in respect thereof except with the prior written consent of 24Gold.
18.1. If an Event of Default has occurred and is continuing 24Gold shall have the right at any such time or at any time thereafter with or without prior notice to the Customer, and without prejudice to any of its other rights or remedies:
18.1.1. To suspend or terminate this Agreement and call for immediate payment of all Indebtedness then outstanding; and, or
18.1.2. To Close Out all open positions; and, or
18.1.3. To enforce the security created by Clause 6.1. immediately and, without prejudice to its rights under Clauses 6.1,1. and 6.1.2, to sell, liquidate or otherwise dispose of, on any such terms as 24Gold may determine, and to realize and apply in such order as 24Gold may determine and without demand, notice, legal process or other action with respect to the Customer, all or any of the Account Balances or any part thereof or the net proceeds from sale or disposal, in or towards satisfaction of the Indebtedness. 24Gold shall not be liable for any loss arising out of such sale, liquidation, disposal, realization or application.
18.2. Any suspension or termination of this Agreement, whether pursuant to this Clause, Clause 27 or for any other reason, shall be without prejudice to the rights of 24Gold against the Customer in respect of any obligations of the Customer hereunder incurred before such suspension or termination, or any provisions of this Agreement, including and without limitation, the indemnities given by the Customer which are intended to come into force or continue in force on or after such suspension or termination.
19.1. The Customer represents and warrants that it has read the terms of this Agreement and the Risk Disclosure Statements set out in Clause 20, understands and accepts them fully, and has adequate Precious Metals experience, expertise and resources to comply with them.
19.2. The Customer represents and warrants that all information provided by or on behalf of the Customer to 24Gold in connection with this Agreement from time to time is and shall be accurate and comprehensive. The Customer hereby undertakes to notify 24Gold and 24Gold undertakes to notify the Customer of any material change to the information provided in this Agreement.
19.3. The Customer hereby undertakes to immediately notify 24Gold of any change of address and of any appointment or revocation of appointment of Authorized Persons.
19.4. The Customer represents and warrants that it has the requisite capacity to enter into and perform this Agreement (including the granting of the security interests created herein), it has all applicable licenses and approvals to enter into and perform this Agreement and, where applicable, is duly authorized to do so under its constitutional documents.
19.5. The Customer represents and warrants that no Event of Default or potential Event of Default has occurred and is continuing in respect of the customer or any applicable security provider.
19.6. The Customer represents and warrants that the Customer is sole beneficial owner of all assets transferred to 24Gold is free and clear of any security or other interest of any other person.
19.7. The Customer represents and warrants that the above representations and warranties will be true and accurate on the date it enters into any Transaction.
19.8. 24Gold and the Customer each represent and warrant they are in full compliance with the Dubai Multi Commodity Centre’s (DMCC) Practical Guidelines on Responsible Supply Chain Management for Gold and other Precious Metals and will continue to comply with these guidelines for the duration of this Agreement.
19.9. Further 24Gold and the Customer each represent and warrant that they shall comply with all other International regulatory rules with respect to Precious Metals Transactions as may be issued from time to time.
19.10. The Customer understands that it may be affected by any curtailment of, or restriction on, the capacity of 24Gold to deal in respect of open positions as a result of action taken by any relevant regulatory authority and, in such circumstances, the Customer may be required to reduce all or any of its open positions at that time and 24Gold shall be entitled to Close Out all or any open position(s) to such extent so as to comply with the requirements of any relevant regulatory authority.
Precious Metals Transactions on the basis of a down payment can provide because of the relatively small initial up-front payment requirements can work against the Customer’s best interests as well as for the Customer. The use of leverage can lead to substantial losses as well as gains. Therefore, before trading, the Customer should carefully consider whether any such physical Precious Metals Transactions are suitable in the light of the Customer’s own financial position and investment objectives.
20.2. 24Gold computerized machinery, which is accessed by the Customer via internet, might become inaccessible for periods of time due to whatever reason on both sides. This could prevent the Customer from executing a transaction which he/she/it would otherwise have made. System or component failure may result in the loss of orders or order priority. Although the Customer can leave orders with the dealer on recorded telephone lines yet have a chance to miss the desired price level or priority. This risk is not a 24Gold responsibility.
20.3. If the Customer’s Trading Account number and password are compromised, the Customer is at risk of unauthorized access to such account. The most serious risk arising from the theft of a password are (i) loss of privacy and (ii) the entering of mischief orders on trading platform. Thus, 24Gold advises the Customer to keep these passwords within their access only. 24Gold does not take any responsibility of mishandling of your account unless the breach of such privacy is its error.
20.4. 24Gold system contains data in electronic from which could conceivably be lost in a widespread and catastrophic machinery failure. 24Gold operates a redundant machinery policy which means that every component of its data storing capability is protected by both local and remote data duplication. The likelihood of a simultaneous loss of all data copies is extremely low. It is worth to mention that in addition to this the system prints out a complete system balance once a week, sends an encrypted copy to remote data vaults, and during each week logs in paper format all transactions, ensuring that data loss is a temporary inconvenience. However, the Customer is advised to save the published reconciliation of the account/property on his/her/its own computer, thereby duplicating that part of the records which relates to the Customer’s own property.
20.5. The Customer hereby irrevocably confirms that it has a complete understanding of the risks involved and accepts the above risk disclosure statements.
21.1. 24Gold shall have no responsibility or liability of any kind for any losses or expenses whatsoever incurred by the Customer as a result of:
21.2. Any delay in or failure to transmit funds for reasons beyond its control, including and without limitation the non-availability of Precious Metals or Foreign Currencies, or
21.2.1. 24GOLD’s failure to obtain instructions from the Customer due to circumstances beyond its control, or
21.2.2. 24GOLD’s failure (whether total or partial) to promptly execute orders placed with it or to transact business or Close Out any open positions to any extent or otherwise operate in the manner contemplated by this Agreement for reasons beyond its control, including and without limitation:
Exchange control or other government restrictions, adverse market conditions or disruptions in the market;
Exchange or market rulings or suspension of trading, any act of force majeure, war riot, civil commotion;
Any breakdown or failure of transmission, communication or computer facilities, postal or other strikes, or similar industrial action and the failure of any exchange, market or clearing house or the failure of any person or party to perform any its obligations arising out of any transaction to which the terms of this Agreement apply or any act or default by any such party or person.
21.3. For the sake of clarity, 24Gold will not be held responsible for any loss or other consequences arising from or in connection with 24Gold not exercising its right to Close Out any Transaction when 24Gold is entitled to do so or any delay in exercising such right.
21.4. Further 24Gold will not be held responsible for any loss or other consequences arising from technical and security problems that may arise from time to time.
22.1. No failure or delay on the part of 24Gold to exercise any power, right or remedy under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise by 24Gold of any such power, right or remedy preclude any other or further exercise thereof or the exercise of any other power, right or remedy. The rights and remedies provided in this Agreement are cumulative and are not exclusive of any other rights or remedies provided by law or otherwise.
23.1. In the event that any one or more of the provisions contained in this Agreement shall be held invalid, illegal or Unenforceable in any respect under the law of any applicable jurisdiction, the validity, legality and enforceability of the remaining provisions under the law of such jurisdiction shall not in any way be affected or impaired thereby.
24.1. In the event that a typographical, mathematical, and, or, other error is made during the course of calculating the price and, or, payment offered to the Customer for a given transaction, Customer agrees to take all the steps requested by 24Gold in order to ensure the error is rectified. Furthermore, the Customer agrees to Indemnify and hold 24Gold harmless from and against all damages or liability that may arise from such an error.
25.1. The Customer irrevocably authorizes 24Gold to disclose as and when 24Gold is required to do so by applicable law or when 24Gold regards such disclosure as necessary or expedient, including but not limited to disclosures for the purposes of credit review of any account held by the Customer with 24Gold or any other member of the 24Gold Group whether singly or jointly with others or otherwise to:
25.1.1. 24Gold head office, affiliates or any member of the Group or any other branches or subsidiaries;
25.1.2. 24GOLD’s auditors and professional advisors;
25.1.3. Any company within the Group and the auditors and professional advisors of such companies;
25.1.4. Any broker, agent, custodian, clearing house, depository or deposit agent in connection with any Transaction effected by the Customer or through the Customer’s accounts;
25.1.5. Vendors, installers, maintainers or servicer’s of 24GOLD’s computer systems;
25.1.6. Any security provider or any person for whose liabilities and obligations to 24Gold the Customer is surety or has given security;
25.1.7. Any exchange, market, or other authority or regulatory body having jurisdiction over 24Gold or any company within the 24Gold Group or over any Transactions effected by the Customer or for the Customer’s account;
25.1.8. Any party entitled to make such demand or request; and
25.1.9. Any person with whom 24Gold contracts or proposes to contract with regard to the sale or transfer or sharing of any its rights, obligations or risks under this Agreement or in connection with any facility, or the sale of any property over which 24Gold has been given any security interest for the Customer’s obligations.
25.1.10. Any information relating to the Customer, the Customer’s accounts, transactions entered into or to be entered into for the Customer’s account, facilities and securities or other property and assets held on the Customer’s behalf (whether for safe custody, as collateral or otherwise).
25.2. The Customer further agrees that to enable 24Gold to centralize its data processing operations, any information pertaining to the Customer, the Customer’s accounts or any Transactions effected for the Customer or the Customer’s account may be given to and processed by 24GOLD’s affiliates or third parties engaged by 24Gold.
26.1. The Parties acknowledge that the existence and the terms of this Agreement and any oral or written information exchanged between the Parties in connection with the preparation and performance this Agreement are regarded as Confidential Information.
26.2. Each Party shall maintain confidentiality of all such confidential information, and without obtaining the written consent of the other Party, it shall not disclose any relevant confidential information to any third parties, except for the information that: (a) is or will be in the public domain (other than through the receiving Party’s unauthorized disclosure); (b) is under the obligation to be disclosed pursuant to the applicable laws or regulations, rules of any stock exchange, or orders of the court or other government authorities; or (c) is required to be disclosed by any Party to its shareholders, investors, legal counsels or financial advisors regarding the transaction contemplated hereunder, provided that such shareholders, investors, legal counsels or financial advisors shall be bound by the confidentiality obligations similar to those set forth in this Clause.
26.3. Disclosure of any confidential information by the staff members or agencies hired by any Party shall be deemed disclosure of such confidential information by such Party, which Party shall be held liable for breach of this Agreement.
26.4. This Clause shall survive the termination of this Agreement for any reason.
27.1. Notwithstanding any other provisions in this Agreement, 24Gold shall have the right to terminate this Agreement if not less than three months have elapsed since the date of the last Transaction.
28.1. 24Gold is entitled to prescribe, from time to time, fees and charges payable by the customer in connection with this Agreement and/or any Transaction effected hereunder. Details of the fees and charges payable from time to time will be provided by 24Gold to the Customer. Any fees and charges paid by the Customer are non-refundable.
28.2. The Customer will reimburse 24Gold on demand all costs and expenses of a reasonable amount including and without limitation, all out-of-pocket expenses and legal fees on a full indemnity basis which may be incurred by 24Gold in connection with this Agreement, any Transaction effected hereunder and/or the exercise of its powers and rights in relation thereto.
28.3. 24Gold may share fees and charges with other companies in the 24Gold Group or other third parties or receive remuneration from them in respect of Transactions. Details of any sharing or remuneration arrangements will be provided by 24Gold to the Customer upon request.
28.4. A certificate signed by a duly authorized officer of 24Gold shall, unless and until the contrary is established, be final, binding and conclusive evidence against the Customer with respect to: (i) The Indebtedness or any part thereof, or; (ii) The Exchange Rate, or; (iii) The amount of fees, charges, costs, expenses and balances payable or applicable in respect of this Agreement, or; (iv) Other amounts, rates or matters relevant to this Agreement.
28.5. 24Gold is entitled to act in accordance with its regular business practices and procedures and will only accept instructions insofar as it is, in its sole opinion, practicable and reasonable for 24Gold to do so. For the sake of clarity, 24Gold is authorized but not obliged to participate in and comply with the rules and regulations of any organization which regulates the conduct of Precious Metals Transactions and, if applicable, any system which provides central clearing, settlement and similar facilities but, in each case, without liability for any acts or omissions on the part of the operator or manager of any such organization or system.
28.6. 24Gold may, and the Customer hereby expressly authorizes 24Gold to, maintain an electronic recording system operated by 24Gold to record all oral instructions given by telephone. The Customer expressly agrees that should any dispute arise at any time in relation to the content of such oral instructions, then that recording or a transcript of the same, certified as being a true transcript by an officer of 24Gold, shall be conclusive evidence as to the accuracy of the contents and nature of such oral instructions unless and until the contrary is established.
28.7. In the event of any inconsistency between this Agreement and any other agreement or rules and regulations of 24Gold governing the Account(s) maintained by the Customer with 24Gold for the purpose of this Agreement (other than the terms of business), this Agreement shall prevail.
28.8. If the Customer comprises more than one person, the liability of the Customer under this Agreement shall be the joint and several liabilities of such persons and any Event of Default shall be deemed to have occurred in respect of the Customer if such event occurs in respect of any one of such persons. In the event of a death of any such person who is an individual or bankruptcy of any such person, the obligations of each other persons comprised in the Customer in respect of this Agreement existing at such time shall continue in full force and effect and 24Gold shall be entitled to rely on the instructions of such other person(s) and 24Gold shall, on the death of any such person who is an individual, hold any assets comprising the Account Balances to the order of the survivors. Each of the persons comprised in the Customer agrees and consents to be bound by this Agreement notwithstanding that this Agreement may be invalid or unenforceable against any one or more of them.
28.9. The Customer understands that in respect of any Transaction undertaken pursuant to this Agreement, 24Gold may hedge or match its position by entering into further Transactions, which may be the reverse of the Customer’s Transaction to any extent.
28.10. 24Gold expressly declares that its employees or representatives will not undertake discretionary management of Customer accounts.
28.11. Both the Customer and 24Gold are in full compliance with the OECD Due Diligence Guidance for responsible supply chains of Minerals from Conflicted-Affected and High-Risk Areas, Supplement on Gold and will continue to comply with the guidelines for the duration of this Agreement.
28.12. 24Gold may vary any applicable Account Interest, fees and charges payable by the Customer in connection with this Agreement and the Transactions from time to time. Any variation shall be binding on the Customer if the Customer continues to maintain any account in connection with this Agreement or if any Indebtedness remains outstanding after the effective date of variation.
28.13. 24Gold may appoint any person as its agent for collecting any or all Indebtedness and the Customer shall be responsible for all costs and expenses of reasonable amount and reasonably incurred by 24Gold for such purpose on each occasion.
28.14. The Customer irrevocably authorizes 24Gold to provide the following information and documents to any guarantor and, or third-party security provider in respect of the Indebtedness:
28.14.1. A copy of this Agreement;
28.14.2. A copy of any formal demand for payment (if any) which is sent to the Customer; and
28.14.3. Upon request by the guarantor or third-party security provider, a copy of the latest statement of each of the accounts used to conduct Transactions issued by 24Gold to the Customer.
28.15. If at any time under this Agreement it is necessary for one currency to be converted into a different currency, the rate of exchange applicable shall be 24GOLD’s prevailing rate at the time.
28.16. The Customer agrees that 24Gold shall not be liable for any delay or non-performance caused by an Act of God or
by the occurrence of any contingency beyond the control of 24Gold including but not limited to Hurricane; Floods, Acts of War; Terrorism; Civil Disobedience; Acts of Government; Failure or Delay in Transportation; or Conduct of Third Parties.
29.1. This Agreement shall be governed by and construed in accordance with the laws of “The United Arab Emirates”.
29.2. The Customer hereby: 29.2.1. Agrees for the benefit of 24Gold that the Courts of The United Arab Emirates shall have exclusive jurisdiction of any claim or dispute hereunder except that 24Gold may take proceedings in any place where the Customer shall now or hereafter hold assets.
29.2.2. Irrevocably appoints the person(s) to be its process agent in The United Arab Emirates. If no such person is so designated, or such appointment ceases to be effective, 24Gold is hereby authorized, as agent of the Customer, to appoint such a process agent on behalf, and at the expense of, the Customer. Service of any legal process on such process agent shall constitute service on the Customer.
29.2.3. Waives any objections on the grounds of venue, forum “non conveniens” or similar grounds; and
29.2.4. Consents to service of process including any writ, judgment or other notice by mail to its address as stated above or as from time to time in the future notified in writing to, and received by, 24Gold.
29.3. Unless otherwise provided in this Agreement, a person who is not a party to this Agreement has no right to enforce any term of this Agreement.
These terms are ancillary to and form part of the General Terms and Conditions of Business relating to Precious Metals Trading entered into by TWENTY FOUR GOLD DMCC (“24GOLD”, “Seller” or “Buyer” as the case may be) and Customer (“Counterparty”, “Seller” or “Buyer” as the case may be). In the event of conflict between the terms of such agreement and this side letter, the latter shall prevail.
“Agreement” means the terms and conditions outlined below as well as those of the Precious Metals Trading Agreement (PMTA);
“Base Price” means the price per unit of Material as agreed by the Parties and which based on the auction price or Loco London spot bid price, including any applicable premium or discount;
“Buyer”means either Party that may be deemed a buyer for each respective Transaction;
"Confirmation" means the communication confirming the terms of a Transaction sent by either Party to the other, sent within one Business Day of the execution of the Transaction;
“Conflict Area” means areas which are affected by war, any other conflict or sanctions deeming such areas to be high-risk where trade in any Material sources from such areas may intensify or perpetuate violent conflict and undermine development, stabilisation efforts, good governance, human rights and the rule of law in such areas;
“Delivery Date” means the mutually agreed date for the delivery of the Material as stated in a Transaction and its corresponding Confirmation;
“Delivery Place” means the delivery location specified by the Buyer;
“Event of Default” as defined the PMTA;
“Force Majeure Event” means an event beyond a Party’s control, including, but not limited to, exchange control or other governmental restrictions, adverse market conditions or disruptions in market, exchange or market rulings or suspension of trading, any act of force majeure, war, riot, civil commotion, any breakdown or failure of transmission, communication or computer facilities, postal or other strikes or similar industrial action and the failure of any exchange, market or clearing house or the failure of any person or Party to perform any of its obligations arising out of any Transaction to which this Agreement may apply or any act or default by any such Party or person;
“Group” means in relation to a company, that company, each and any subsidiary or holding company from time to time of that company.
“LBMA” means the London Bullion Market Association or its successors;
“LPPM” means the London Platinum and Palladium Market or its successors;
“Material” means any or all of gold, silver, platinum, palladium or any other metal in such forms and purities that may be traded between the Parties for each Transaction;
“Seller” means either Party that may be deemed a Seller for each respective Transaction; “Transaction” means the sale or purchase by 24GOLD to or from the Counterparty (as the case may be) of any Material for the Transaction Value which shall be physically delivered; and
“Transaction Value” means the total amount due from a Transaction, i.e. the multiplication of the Base Price by the required amount of Material expressed in U.S. Dollars or any other currency as the Parties may agree as set out in the Confirmation, or any other currency as may be agreed between the Parties, contract for the purchase/sale of Material at any one time which is the Base Price.
3.1. The Parties may agree on a Transaction by any electronic means mutually agreed by them.
3.2. Once the Parties have agreed a Transaction, the Parties shall agree which Party will nominate the carrier and which Party will be liable for the air freight, insurance and delivery charges for the Material.
3.3. In the event that the Parties are unable to agree, 24GOLD shall nominate the carrier in its sole discretion. This will always be agreed on a case by case basis.
3.4. The Buyer shall nominate and confirm to the Seller the Delivery Place for the Material.
3.5. The Seller shall instruct the nominated carrier to collect the Material and deliver it in accordance with Clause 9 (Delivery).
3.6. Once the terms of the Transaction have been agreed between the Parties and the Material has been priced in full, the Counterparty shall send 24GOLD a completed Confirmation by e-mail, post or facsimile.
3.7. 24GOLD shall check the Confirmation and notify the Counterparty of any discrepancies with the agreed terms for the Transaction.
4.1. For each Transaction, the Parties shall determine the Business Day(s) on which the Material will be priced. The Parties shall agree in writing or by telephone whether to price the Material on the open market or the LBMA or LPPM auction as the case may be. This shall be agreed by the Parties for each Transaction.
4.2. The payment terms for each Transaction shall be expressly agreed between the Parties per Transaction. Unless otherwise agreed between the Parties, 24GOLD shall only be liable to effect payment in the nominated currency, once the carrier has confirmed delivery of the Material to the Delivery Place for the account of 24GOLD or where 24GOLD has received the equivalent Loco London and/or Loco Zurich ounces, as may be applicable.
4.2.1. Finished Material: Where the Material is sourced from a LBMA accredited refinery, the Seller shall provide the Buyer with the original assay certificates which have been issued by the assay office of the refinery. The form of the Material shall comply with the LBMA or LPPM rules for that particular Material. Where the finished Material is in the form of bars, then each bar shall have an individual certificate. Where the Material is grain, then each canvas bag shall have a certificate. The assay certificates shall state the weight of the precious metal content in the Material. The refinery and/or the carrier will pack the Material suitable for international shipment. Where the Material differs from the assay certificates from the refinery, then the Parties shall mutually agree the method for settling the discrepancy, but which may include costs for settlement via independent umpire analysis.
4.2.2. Large Bars; Where the Seller supplies large bars, these will be in the assay, size and weight as prescribed by the LMBA’s Good Delivery List, unless such bars are of non-LBMA accreditation.
4.2.3. Scrap Material: The Seller shall contact 24GOLD to indicate the availability of scrap Material for the purposes of refining. The Parties shall agree the quantities that will be acceptable for each scrap supply. The Material must be in a form and from a source as expressly agreed with 24GOLD and the nominated refinery. The Parties shall agree the destination refinery. 24GOLD will be responsible for negotiating the terms with the refinery(ies) and relaying this information to the Seller. 24GOLD will not be liable for any relevant metal losses which are incurred during the refining process. The Seller shall provide the Buyer with a statement of conformance as drafted to the 24GOLD’s satisfaction. The Seller warrants that the Material will be free from any deleterious materials which could contaminate the refining process, details of such materials and the tolerance levels are available upon request by the Seller. At the Seller’s expense, the Seller may nominate to have a third-party umpire attend the refining process and, if required, take samples. The Seller must notify 24GOLD in writing (and email shall be acceptable for such notice) before the Material arrives at the nominated refinery. Where the Seller disagrees with the refining results, then they may elect to send a sample for independent umpire analysis, the cost of which shall be borne by the Seller. Full details of the settlement procedure are available upon request.
4.2.4. Dore Bars: The Seller shall supply the shipping documents as may be required by the Buyer or in accordance with the governing law of the Delivery Place. At a minimum the Seller shall supply the invoice, assay certificate and packing list, where such terms shall have their normal meanings within the precious metals trading industry.
4.2.5. PGM Supplies: The Parties shall agree the quantity, Base Price and form of the Material. The packing of any PGM supplies will be at the discretion of the supplier.
5.1. The Seller shall deliver the quality/purity of the Material subject to the Transaction and Confirmation as agreed between the Parties.
5.2. Unless otherwise agreed between the Parties in writing, all deliveries by the Counterparty to 24GOLD shall as a minimum meet the specifications and requirements of London good delivery or equivalent market standard laid down from
time to time by the LBMA or the LPPM. 5.3. Unless otherwise in these terms or the Agreement, the minimum assay for silver will be 99.9% and the minimum for gold will be 99.5% in accordance with the LBMA market rules with the total absence of deleterious materials. The minimum assay for platinum will be 99.95% and 99.95% for palladium in accordance with the LPPM market rules.
5.4. Where the Material does not correspond with the assay certificates, the Parties shall negotiate in good faith to agree the procedure for assessing the purity of the Material and the method of settlement thereafter. Where the Parties cannot mutually agree such procedure and settlement, 24GOLD shall, acting reasonably, nominate the procedure and settlement.
6.1. The Seller shall be responsible for furnishing both the shipper and the Buyer with documentation which includes, but is not limited to, the following:
(i) Export documents
(ii) Certificate of Country of Origin of the metal
(iii) customs invoice;
(iv) packing list;
(v) assay certificate; and (
vi) customs clearance authorization(s) as may be applicable for the material delivered.
6.2. The documentation will provide a complete description of contents including weights, metal type, and declared value. 24GOLD is no liable for any loss claimed where the Customer fails to provide the appropriate documentation. The Customer acknowledges that 24GOLD’s receipt of the material shall not in any way constitute agreement with regards to the weight and/or composition as stipulated by the Customer.
6.3. 24GOLD will confirm the received wight of all material prior to accepting delivery. In the event that any significant discrepancy exists, 24GOLD will contact the Customer and seek to reach an agreement on the received weight prior to continuing on with processing. 24GOLD agrees to inform the Customer regarding the processing time required for all materials received from the Customer. The Customer must notify 24GOLD within a reasonable period of time of any objection related to any reported discrepancy. The Customer’s failure to object to any reported discrepancy within a reasonable period of time shall be considered waiver by the Customer of any claim against 24GOLD. In the event that 24GOLD and the Customer do not reach an agreement, 24GOLD reserves the right to return the Material to the Customer at the Customer’s expense.
7.1. The Customer agrees that final settlement will be based on the precious metal content of all materials delivered by Customer and determined at the sole discretion of the analytical methods applied by 24GOLD. The methods for analysis may include but are not limited to:
a. Fire Assay
b. X-Ray Fluorescence Spectroscopy (XRF), and
c. Inductively Coupled Plasma Mass Spectrometry (ICP).
7.2. In order to conduct an analysis of the Customer's material 24GOLD shall collect a representative sample of each melt and, or, lot through any sampling procedure 24GOLD may deem appropriate for the given material. At the conclusion of the assaying process, 24GOLD will report the results to the Customer. The Customer will be granted three (3) business days to present an objection to the assay reported after which time the assay reported will be considered accepted by the Customer and the option to contest the assay reported will be considered waived. In the event that the Customer objects to the assay report, 24GOLD may consider various options including but not limited to:
a. Negotiate a mutually agreeable figure and, or, methodology with which to compute the precious metals contained in the melt or lot in question; and, or
b. Solicit a mutually agreeable third party "Umpire" assay. The Customer acknowledges that 24GOLD shall not be liable for the return of any additional material not requested by Customer or specifically noted in the Refining Agreement.
7.3. In the event that there is a deviation of up to “one per mille” (1/1000) between the Assay provided by the Umpire and the Final Assay produced by 24GOLD, The Customer and 24GOLD agree that the Settlement Assay will be the mid-point between the Umpire’s results and those of 24GOLD. For the sake of clarity, and by way of example, this means that if the Umpire’s Assay is 0.926 and 24GOLD’s Assay is 0.924 the Settlement Assay will be 0.925 and this result will form the basis of the settlement and payment for materials supplied by the Customer to 24GOLD.
a. In the event that there is a difference of “two per mille” (2/1000) or more between the Assay provided by the Umpire and the Final Assay produced by 24GOLD, the two Parties agree to refer the materials to a second third party Umpire. The Customer and 24GOLD agree that the Settlement Assay will be the mid-point between the first Umpire’s results and those of the second Umpire. For the sake of clarity and by way of example this means that if the first Umpire’s Assay is 0.926 and the second Umpire’s Assay is 0.922 the Settlement Assay will be 0.924 and this result will form the basis of the settlement and payment for materials supplied by the Customer to 24GOLD.
7.4. All costs relating to the referral of materials to Umpires will be borne by the Customer and will be taken fully into account when the transaction is settled 24GOLD and the Customer.
8.1. Unless otherwise agreed, the Customer bears sole responsibility and liability for shipping to 24GOLD any precious metal-bearing products (i.e., products containing gold, silver, palladium, or platinum). 24GOLD shall only be held responsible for insurance, loss, or damage once the product has been delivered and accepted at the vaults of 24GOLD.
8.2. The Customer agrees to notify and seek approval from 24GOLD prior to shipment of material that may contain substances considered toxic or hazardous. In the event that the Customer fails to provide proper notification or receive the adequate approvals for delivery of material, 24GOLD reserves the right to return the material to the Customer at the Customer’s expense and charge the Customer for any reasonable handling fees or expenses incurred by 24GOLD as a result.
8.3. In the case of physical supplies and shipments, the Customer agrees that the total liability to the Customer for loss of or damage to material will be limited to the lesser of:
a. The confirmed amount paid for the material.
b. The declared total value of material documented for shipping purposes. Notwithstanding any conditions to the contrary as outlined herein, in no event will 24GOLD be considered liable for actual damages, damage to reputation, lost business opportunity, lost profits, interest, attorney's fees, or indirect, incidental, or consequential losses or damages.
9.1. The Party responsible for the shipping shall ensure that the Material is fully insured whilst in transit until final delivery at the Delivery Place. The Counterparty shall be responsible for obtaining at its own risk and expense, any import or export license or other official authorisation and carry out all customs and import formalities that may apply. The Counterparty shall be liable for and shall indemnify 24GOLD on demand against any customs duties, taxes or any other type of government levies raised in connection with the sale and purchase of the Material.
9.2. Unless otherwise agreed between the Parties, where the Seller is 24GOLD, it will release the Material to the Counterparty upon receipt of the Transaction Value in cleared funds or upon receipt of the authenticated SWIFT message confirming the same. Where the Buyer is 24GOLD, it will remit Transaction Value on receipt of the released Material.
9.3. If the Counterparty fails to make a delivery or is delayed in making a delivery pursuant to a Transaction, the Counterparty shall inform 24GOLD as soon as practicable. Where possible and at 24GOLD’s sole discretion in an effort to mitigate its loss, 24GOLD may unwind the proportion of the Transaction comprising the undelivered Material pursuant to the Transaction at the prevailing market price. Alternatively, the Parties may agree to extend the Delivery Date of the Material and adjust the Transaction Value accordingly to reflect any change in market price and inclusion of any applicable interest rates.
10.1. The Material to be delivered under each Transaction shall be delivered and released to the Buyer at the Delivery Place free of all liens, charges and adverse claims of any and every kind.
10.2. Unless the Buyer agrees to ship the Material themselves, the Seller shall be responsible for instructing the carrier, and monitoring the carriage of the Material for each Transaction to the Buyer’s Delivery Place.
10.3. The Seller shall bear the risk of delivery of the Material subject to a Transaction, until it is delivered to the Buyer’s Delivery Place. It will be the Buyer’s responsibility to arrange carriage of the Material from the Delivery Place.
10.4. Title and property in the Material delivered under each Transaction shall pass simultaneously from the Seller to the Buyer at the point in time when such Material is delivered to the Delivery Place in compliance with the provisions of Clause 9 (Delivery).
11.1. The terms and their interpretation shall be governed by and construed in accordance with the laws of the United Arab Emirates.
11.2. The Parties irrevocably agree that the courts of DIFC shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with these terms, the subject matter or formation.
For the sake of clarity and to assist the Customer in fully understanding the terms and conditions contained in the Precious Metals Trading Agreement and its Annexes, set out below are definitions of various expressions used in the Agreement. These should be used for guidance only and should not be regarded as a comprehensive set of definitions of the terminology used in the Agreement. The Customer hereby warrants and represents that it fully understands the full meanings of the terminology set out below that may have been used in the precious metals and related transactions trading agreement.
“Account Balances” means the total cash and non-cash assets, which may, at 24GOLD’s sole discretion, include but is not limited to bullion bars, precious metals Jewellery, standby or usance letters of credit and bank guarantees acceptable to 24GOLD and valued at 24GOLD’s sole discretion.
“Account Interest” means interest payable by 24GOLD to the Customer on any credit balances comprising any Account Balance or interest payable by the Customer to 24GOLD on any debit balances on any Account Balance, at such interest rate that 24GOLD may specify from time to time.
“Account Valuation Loss Limit” means the limit set by 24GOLD 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 Customer 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 24GOLD.
“Assay” means the determination of the precious metal content of an alloy, either using a direct method (where the actual precious metal content is measured) or an indirect, instrumental method (usually based on spectrographic analysis) in which the levels of impurities are measured and the precious metal content is calculated by difference. For gold, the main direct method is fire assay, also known as cupellation or gravimetric analysis.
“Authorized Person(s)” means any person(s) authorized by the customer to give instructions on behalf of the Customer to 24GOLD in connection with this Agreement, as notified to 24GOLD from time to time in such manner as 24GOLD requires.
“Business Day” means a day on which banks in the jurisdiction of the relevant Precious Metals or Foreign Currencies are open for the purpose of carrying out transactions and during which Precious Metal and Foreign Exchange Transactions may be carried out or payments paid, as the case may be.
"Consignment Period" means the agreed number of days that a Customer may hold Metal on Consignment as specified in Annex No.1 or as agreed in writing.
"Consignment Request" means the request by the Counterparty for Consignment Stock to be made available on the terms and conditions agreed between 24GOLD and the Customer.
"Consignment Stock" means the Precious Metal either delivered or transferred to a Customer or collected by a Customer in accordance with the terms of this Agreement.
“Currency Exchange” means the sale and or purchase by a Customer of any currency or currency product as determined by 24GOLD from time to time in relation to the Customer’s sale and or purchase of Precious Metals.
“Customer” means the person or, as the case may be, each person whose name and address are specified above and if the name and address of a firm are specified, shall mean each present and future partner of the firm and, in the case of an individual or firm, shall include any personal representative or lawful successor of such individual or partner and, where the context permits or requires, shall include any Authorized Person(s).
“Customer Equity” shall mean the sum of Total Net Value of the Customer’s 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 24GOLD the “Customer Equity should always be positive in favour of 24GOLD.
“Discount” shall mean, in respect of physical Precious Metals, the cost or price at which 24GOLD will accept a supply of the relevant precious metals, taking into account form, quality and delivery location of the precious metal to be supplied as may be agreed from time to time by both parties.
“Event of Default” shall mean the occurrence of any of the following:
The Customer fails to pay any sum payable or deliver any assets deliverable under or pursuant to this Agreement or to perform any of its other obligations hereunder, including maintenance of the Required Account Balances and provision of additional Down Payments as required under Clause 5.
The Customer shall commence a voluntary case or other proceeding or procedure seeking liquidation, reorganization or other similar relief with respect to it or its debts under any bankruptcy, insolvency or similar law or seeking the appointment of a trustee, administrative receiver, receiver, liquidator, administrator, custodian or similar officer of it or any substantial part of its assets or, where the Customer is a corporation, shall take any corporate action to authorize any of the foregoing and in the case of a reorganization, arrangement or composition 24GOLD does not consent thereto.
An involuntary case or other proceeding or procedure shall be commenced against the Customer, which has an effect similar to the events mentioned in (II) above.
The Customer shall commit an act of bankruptcy as defined under any bankruptcy or insolvency law applicable to the customer or any other act with similar effect or, in the case of an individual only, shall die or become of unsound mind.
Any representation or warranty made or deemed to be made by the Customer pursuant to this Agreement or pursuant to any Security Documents proves to be false or misleading in any material respect.
The Customer shall amalgamate with or merge into or transfer all or substantially all its assets to another entity and the creditworthiness of the resulting amalgamation, merger or transferee entity is in the opinion of 24GOLD, materially weaker than that of the Customer prior to such action.
An event occurs which 24GOLD regards in its sole discretion, and without being under any obligation to give reasons therefore, as a material adverse change in the circumstances of the Customer.
The entering into or continued performance of any Transaction or either party’s obligations under this Agreement shall become illegal or unenforceable.
This Agreement ceases to be in full force and effect or the Customer or any third party disaffirms, disclaims or repudiates (in whole or in part) or challenges the validity of this Agreement.
Where 24GOLD has accepted security for the Customer’s obligations from any security provider, any of the foregoing events occurs in relation to the security provider and for that purpose references therein to the “Customer” shall be deemed to include reference to such security provider and reference to this Agreement shall be deemed to include reference to any Security Document.
“Exchange Rate” means the rate for converting one currency into another currency which 24GOLD determines to be prevailing in the relevant foreign exchange market at the relevant time, such determination to be conclusive and binding on the Customer in the absence of manifest error.
“Exchange Rate” “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 24GOLD 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 the Customer to 24GOLD 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, interest thereon, both before and after any demand or judgments, to the date on which 24GOLD actually receives payment, at the rates payable by the Customer or which would have been payable but for any circumstance which restricts payment and all charges, fees (including legal fees charged to or by 24GOLD), and expenses incurred by 24GOLD in enforcing its rights under this Agreement.
“Initial Down Payment Percentage” means the percentage of the amount of a Transaction required as an initial Down Payment for each Transaction, as from time to time notified by 24GOLD to the Customer, and as specified as in Annex No.1.
“Maximum Facility” means the maximum aggregate amount of open positions, which may be open at any given time as specified in Annex No.1.
“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 as specified in Annex No.1.
“Option” shall mean the right (but not the obligation) of the Buyer, upon exercise, to enter into 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.
“Precious Metal” shall mean any or all of gold, silver, platinum and palladium.
“Precious Metal Transaction” shall mean the agreement for sale or purchase by the Customer to or from 24GOLD of any Precious Metal against U.S. dollars or other currencies agreed by 24GOLD with the Customer on a spot, forwards or options basis. Delivery under a spot Precious Metal Transaction shall be due on the second Business Day after the Transaction was entered into unless otherwise agreed.
“Premium” shall mean, in respect of each Option, the amount or price (if any) specified in the related confirmation which, subject to any applicable condition precedent, is payable by the Buyer to the Seller for that Option.
“Premium” shall mean, in respect of physical precious metals, the cost or price at which 24GOLD is prepared to supply the relevant Precious Metal, taking into account form, quality and delivery location of the Precious Metal to be supplied as may be agreed from time to time by both parties.
“Premium Payment Date” shall mean, in respect of each Option, the date specified as such in the related confirmation.
“Required Down Payment” means:
a. In the case of the initial Down Payment required under Clause 3.1, such amount as 24GOLD and the Customer shall agree 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 Customer pursuant to this Agreement.
“Seller” means, in respect of each Transaction, either 24GOLD or the Customer specified as such in the related confirmation.
“Settlement Assay” means, in respect of each supply of Precious Metals materials:
a. In the event that there is a deviation of up to “one per mille” (1/1000) between the Assay provided by the Umpire and the Final Assay produced by 24GOLD, The Customer and 24GOLD agree that the Settlement Assay will be the mid-point between the Umpire’s results and those of 24GOLD and this result will form the basis of the settlement and payment for materials supplied by the Customer to 24GOLD.
b. In the event that there is a difference of “two per mille” (2/1000) or more between the Assay provided by the Umpire and the Final Assay produced by 24GOLD, the two Parties agree to refer the materials to a second third party Umpire. The Customer and 24GOLD agree that the Settlement Assay will be the mid-point between the first Umpire’s results and those of the second Umpire and this result will form the basis of the settlement and payment for materials supplied by the Customer to 24GOLD.
“Strike Price” means, with respect to Options, the price of the Precious Metal Transaction to be entered into upon exercise of the Option.
“Total Account Value” means the Account Balances plus the sum of profits and losses resulting from closed positions.
“Seller” “Transaction” means a Precious Metal Transaction and, for the sake of clarity, includes Spot, Forwards and Options transactions.
“Value Date” shall, in respect of each Transaction, mean the date specified in the related confirmation on which such Transaction is due to be settled.