Except to the extent (if any) that SGI has agreed in writing or notified you in writing otherwise that other or additional terms apply, these FX Terms and Conditions shall form the contract to which any foreign exchange trades, including, without limitation, any standing instruction for a foreign exchange trade (each a "Transaction") entered into between Sauder Global Investment ("SGI") and a counterparty ("you," "your") apply.
1. Settlement Netting. Unless otherwise agreed in writing by SGI, any amounts payable by one party to another in respect of sales or purchases of the same currency for the same value date will settle for the nett amount of the currency bought and sold, and each party's obligation to pay the gross amount will be automatically satisfied and discharged, and replaced by an obligation on the relevant party to pay the nett amount.
2. Events of Default. Each of the following circumstances will be considered an event of default ("Event of Default"):
(a) Failure by you to make a required payment under a Transaction, or if you lack sufficient funds to do so, and this failure is not resolved within the first business day after SGI notifies you of the issue.
(b) If you, your parent, affiliate, or investment manager/advisor (where applicable) experience an event such as bankruptcy, insolvency, receivership, liquidation, dissolution, winding-up, enforcement of a lien or security interest, foreclosure, or any other legal process that results in the loss of beneficial ownership of a significant portion or the entirety of your assets ("Insolvency Event").
(c) If you encounter an event or series of events, irrespective of your control, including material adverse changes in your business, assets, financial condition/position, or credit rating, that SGI determines, at its sole discretion, may adversely impact your ability to fulfill your obligations under any Transaction.
3. Consequences of Termination. (i) After termination as per Clauses 2 and 5 mentioned above, SGI will have the authority to close all outstanding Transactions between you and SGI. The calculation of the payment due on termination (known as the "Early Termination Amount") will be done using the methodology specified in Section 6(e)(i) of the 2002 ISDA Master Agreement, published by the International Swaps and Derivatives Association, Inc. ("ISDA Agreement"). For this calculation, references to "Terminated Transaction" signify each Transaction subject to close out under this clause, the "Termination Currency" will be US Dollars, the "Determining Party" in the definition of "Close-out Amount" will be SGI, and the "Early Termination Date" will be the effective date of termination under Clauses 2 and 5 as applicable.
(ii) SGI will promptly notify you (or your investment manager/advisor, if applicable) in writing regarding the Early Termination Amount after termination. If an Early Termination Amount is owed to SGI, you will make the payment to SGI in a specified account. On the other hand, if the amount is owed to you by SGI, SGI will pay the absolute value of the Early Termination Amount to your account. These payments will be made on the date when SGI provides the notification under this clause.
4. Set-Off. (i) SGI shall have a general right of set-off with respect to any sums owed by you, whether due and payable or not, and regardless of whether an Event of Default has occurred and/or a Transaction has been cancelled. (ii) SGI's rights under this agreement shall be in addition to, and not in limitation of, any rights that SGI may have (by agreement, operation of law, or otherwise).
5. Force Majeure. Neither party shall be held liable for any losses or damages resulting from a Force Majeure event. A Force Majeure event refers to any circumstance or occurrence beyond the reasonable control of the affected party ("Affected Party"), excluding any misconduct on its part, that significantly and negatively impacts the Affected Party's ability to fulfill its obligations under this agreement, whether they are unconditional or contingent. Such events may include, but are not limited to: (a) acts of God, (b) accidents, fires, water or wind damage, or explosions, (c) computer system failures or malfunctions caused by viruses or issues with communication mediums, (d) disruptions in power supply or other utility services, (e) strikes or work stoppages, whether partial or complete, (f) acts of war, terrorism, riots, insurrections, or civil commotions, or other acts influenced by economic or political factors, (g) the imposition of taxes, levies, or charges impacting currencies or Transactions, (h) changes in applicable laws leading to settlement prohibition or legal impracticability, (i) disruptions, suspensions, delays, or disruptions in the securities, commodities, or foreign exchange markets or in the execution or settlement of Transactions, (j) encumbrances or adverse effects affecting currency transferability, convertibility, or ability to hold a currency or currency position on the actual settlement date of a Transaction, or (k) any other similar cause beyond the reasonable control of the Affected Party.
In the event of a Force Majeure event, the non-Affected Party may terminate the affected Transactions by providing written notice to the Affected Party, and such termination will take immediate effect. The provisions of Clause 3 will be applicable to the outstanding affected Transactions.
6. Transaction Instructions, Confirmations and Settlement Instructions. (i) Transaction instructions may be given by you to SGI in such manner and subject to such terms as agreed between the parties from time to time. SGI may, without further enquiry, act on, and you shall be bound by, any instruction actually received by SGI, which it reasonably believes, in good faith, to have been given by you, or on your behalf. (ii) SGI will endeavor to dispatch a confirmation within 24 hours of execution of a Transaction, in such manner as agreed between the parties from time to time. Unless you notify SGI prior to settlement with reasonable time for SGI to unwind the trade that a confirmation is incorrect or that the Transaction described therein was not properly authorized, such Transaction shall be deemed valid and binding on you. SGI’s failure for any reason to provide a confirmation shall not invalidate any Transaction executed by SGI. (iii) You will provide to SGI a list of the persons designated to receive confirmations from SGI, along with their contact information (e.g., mailing addresses, email addresses, facsimile and/or telephone numbers, and SWIFT addresses, as applicable) in a format agreed by the parties. Unless and until notified otherwise by you in writing, SGI shall be entitled to conclusively rely on any such list of designated persons (and the information set out therein) provided by you from time to time. You acknowledge that electronic mail (“e-mail”) transmissions through the Internet and/or facsimile transmissions are not a guaranteed method of delivery and may be susceptible to loss of information, errors, mis-delivery, mis-transmission, delivery delays, deletions in error, and unwanted access and use by third parties. You further acknowledge that the receipt of legible instructions via facsimile cannot be assured, that SGI cannot verify that authorized signatures on a facsimile instruction are original or properly affixed. Accordingly, you agree not to hold SGI liable for any losses incurred as a consequence of effecting any e-mail or facsimile instructions.
7. Electronic Communications. You consent to the monitoring and recording of all electronic communications (including e-mail, voicemail, telephone calls and website usage) between you and SGI and agree (i) to notify (and where applicable, obtain consent from) their employees and officers of such recording and monitoring if legally required; and (ii) that any such recordings may be submitted in evidence to any court or in any legal proceeding related to a Transaction.
8. Assignment, Integration, Qualifying Financial Contract.
No assignment of this contract or any of your rights or obligations under this contract is permitted without the express prior written consent of SGI. Any attempt to assign or transfer this contract without SGI's prior written consent will have no effect. This contract is binding upon you, your estate, executors, administrators, successors, and assigns. Timely performance is essential for all your obligations under this contract. This contract, along with all Transactions and options between you and SGI, constitutes one integrated contract, even though SGI reserves the right to consider each Transaction as a separate contract (as mentioned in the fifth paragraph above). This contract is a "qualifying financial contract" as defined in the New York General Obligations Law and Uniform Commercial Code and represents the final agreement between SGI and you regarding the Transactions listed on the reverse side of this document.
9. Jurisdiction and Governing Law.
This contract and all Transactions between you and SGI are governed by and construed in accordance with the laws of the State of New York, without considering any choice of law rules. Both SGI and you unconditionally submit to the non-exclusive jurisdiction of the courts in the State of New York and the United States District Court located in the Borough of Manhattan, New York City. Both parties waive any objection to the laying of venue in such courts and any claim that any suit, action, or proceeding in any such court has been brought in an inconvenient forum. Both parties also waive the right to object to the jurisdiction of such courts over SGI or you, respectively. Additionally, both parties waive the right to a trial by jury in any suit, action, or proceeding related to this contract. The Secretary of State of the State of New York is designated as the agent for the service of process, but both SGI and you may change this designation by providing written notice to the other party, designating a specified person located in the Borough of Manhattan.
This information is not intended as financial advice or as an offer or recommendation of any financial products and is subject to change without notice. Neither Sauder Global nor its affiliates accept any responsibility for the results or liabilities arising out of the use of this information. All information supplied by SGI & Co. is from sources deemed reliable and is furnished subject to errors, omissions, modifications, and is not guaranteed. The recipient of this report acknowledges and agrees that they are solely responsible for any trading or investment decisions made after reviewing this report and also agrees that SGI and its affiliates bear no responsibility or liability for such decisions.