Standard Terms and Conditions
This Agreement sets out the general terms and conditions relating to your dealings with Jameson Bank ("Jameson"). It explains how trades in foreign currency will be handled and what Jameson's responsibilities are to you and your responsibilities to Jameson. In dealing with Jameson, additional forms will be used, as explained herein, which set out specific terms and conditions of your foreign exchange transactions. In this Agreement, the words "you" and "your" mean the customer who has entered into a New Client Application Form, which, by reference incorporates this Agreement.
1. Definitions
In this Agreement, these terms have the following meanings:
- · “Agreement” means this Agreement and all schedules, if any, thereto, as may be amended from time to time;
- · “Authorized Person” means that individual or those individuals you have identified in the New Client Application Form as having authority to enter into Deals on your behalf and/or who have authority to provide Jameson with settlement and delivery instructions for completed Deals, including signing Deal Confirmations;
- “Business Day” means any day other than a Saturday, Sunday or a day in which chartered banks in Canada are not open for business [Province of Ontario];
- “Currency” means money denominated in the lawful Currency of a country;
- “Deal” means a transaction in which you agree to purchase or sell Currency from or to Jameson. All Deals are governed by this Agreement;
- “Deal Confirmation” means, subject to section 2.2 of this Agreement, the form of written confirmation delivered to you by Jameson and returned to Jameson by you setting out the terms of a Deal. [The deal confirmation may include] the Currency to be bought or sold by Jameson on your behalf, the amount of such Currency, the price to be paid for such Currency, the date for delivery of the Currency bought or of the proceeds from the sale of such Currency and settlement instructions;
- “Forward Contract” means a purchase or sale of currencies for settlement beyond two business days. Forward Contracts are entered into at your request in order to settle foreign currency obligations and not for speculative purposes;
- “New Client Application Form” means the form to be entered into by Jameson clients for the purpose of opening an account with Jameson for the purpose of the purchase and sale of foreign currency and related services, which form
- incorporates by reference this Agreement;
- “Privacy Policy” means the privacy policy of Jameson as established, maintained and amended from time to time;
- “Wire Instructions” means the Instructions provided by you to Jameson in respect of the wiring of monies in the event Jameson is instructed by you to deliver monies by wire transfer. The Wire Instructions may be delivered as part of the Deal Confirmation or may be delivered independently and may be by way of exchange of facsimile transmissions or email. Collectively, such instructions will constitute the Wire Instructions;
- “You” means the undersigned Client and “Your” refers to the undersigned Client.
2. Deals
2.1 Creating your Deal.
To create a Deal with Jameson, your Jameson Trade Representative will provide to you by telephone, facsimile transmission and/or by email, the terms of a Deal, including the Currency to be bought or sold by Jameson on your behalf, the amount of such Currency, the price to be paid for such Currency and the date for delivery of the Currency bought or of the proceeds from the sale of such Currency. If you accept same, either by telephone, facsimile, e-mail or otherwise, the Deal will have been entered into and will be your binding obligation. A Deal is subject to the terms and conditions of this Agreement.
2.2 Deal Confirmation.
The terms of each Deal will be set out in the Deal Confirmation which will be delivered by a Jameson Customer Service Agent, faxed or emailed, or such other agreed upon form of delivery, to you following your acceptance of the Deal. The Deal Confirmation is evidence of the terms of a completed or to be completed Deal. The Deal will not be invalidated if for any reason the Deal Confirmation is not presented to you by Jameson, including as a result of any telecommunications malfunction. If for any reason the Deal Confirmation is not presented to you, the records of Jameson with respect to that Deal will constitute conclusive evidence of the terms of the Deal. The Deal Confirmation is deemed delivered to you unless, within one (1) business day of making the Deal, you inform your Jameson Trade Representative that you have not received a Deal Confirmation, in which case Jameson will provide you with a Deal Confirmation. If a Deal Confirmation is not returned, signed by you where indicated, to Jameson, or if any errors on the Deal Confirmation Form are not identified by you, in both cases within one (1) business day of your receipt of the Deal Confirmation, then the Deal Confirmation is deemed to be executed and returned by you and any errors on the Deal Confirmation are binding against you (but not Jameson). If you provide all funds necessary to complete the Deal, then the Deal is also deemed confirmed and the Deal Confirmation deemed to be completed and returned to Jameson.
2.3 Payment.
Once a Deal has been entered into, you must make each payment or delivery required to be made by you under the terms of the Deal in the Currency and amount, on the date and in accordance with the settlement instructions for the Deal, as stated in the related Deal Confirmation. Payment must be made by method of guaranteed funds (certified cheque or bank draft. If you fail to pay the amount owing under the terms of the Deal, in addition to any other remedy Jameson may have, you will be liable for any costs, expenses and fees payable or incurred by Jameson as a result of such failure, and without limiting any other remedies that Jameson may have, Jameson, in its absolute discretion, may cancel the Deal, in which case you will have to reimburse Jameson for any breakage costs and other expenses incurred by Jameson to cancel the Deal.
2.4 Reliance on Instructions.
In completing a Deal, Jameson may, but is not obligated to, rely and act upon telephone, fax and any other electronically transmitted instructions from or purporting to be from you (including an Authorized Person) and which Jameson believes in good faith to be genuine.
2.5 Cancelling a Deal.
Once a Deal has been entered into, the Deal is your binding obligation. If for any reason you wish to cancel a Deal that has been entered into by you, you must notify Jameson immediately by calling your Jameson Trade Representative. You understand that the cancellation of any such Deal will be within the sole and absolute discretion of Jameson and you further understand that if Jameson attempts, on your behalf, to cancel a Deal, it will use only reasonable efforts to try to do so and that there is no assurance that Jameson will be able to do so. You will be responsible for any Deal that is cancelled by Jameson and you must reimburse Jameson for any breakage costs and any other expenses that may have been incurred by Jameson to cancel the Deal.
2.6 No Advice.
You represent that you are not relying on any communication (written or oral) of Jameson as investment advice, as recommendation to enter into a Deal or an assurance of expected results of a Deal and that each Deal entered into by you will be based upon your own judgment and upon advice from such advisors as you have deemed necessary. You acknowledge that Jameson is not acting as a fiduciary or advisor with respect to any Deal.
2.7 Margin.
When entering into a Forward Contract, Jameson requires you to provide funds to it (the “Margin”). The Margin is a down payment made in partial satisfaction of the amount due on the completion of the Forward Contract or Deal. Jameson's standard Margin requirement is 10% of the total Canadian dollar value of each Forward Contract you book with Jameson. Margin must be paid at the commencement of the applicable Forward Contract. The amount of the Margin will be calculated at the inception of the Forward Contract and shall be maintained while that contract is open. Margin shall be paid in the currency required by Jameson; however, whatever the currency is received may be treated by Jameson as payment of Margin and the value of such currency shall be as determined on the day it is delivered.
2.8 Use of Margin.
Margin will be held until the maturity of the Forward Contract for which such Margin is held. On maturity, the amount owing on account of the Forward Contract or Deal will be payable, less any amount already paid as Margin, plus . any other amounts Jameson has the right to deduct in accordance with this Agreement. In providing Margin, you acknowledge and agree that such amount: (i) may be used by Jameson in the ordinary course of Jameson's business (including, but not limited to any banking agreements); (ii) will not be maintained by Jameson in a segregated account in your favour; and (iii) shall not be subject to a trust, deemed or otherwise, in your favour, and that your right to have the amount of the Margin applied or credited in your favour represents an unsecured claim against Jameson and does not represent a claim, by way of trust or otherwise, to the Margin or to proceeds or to any assets of or under the control of Jameson. Upon your instructions, you may arrange with your Jameson Trade Representative to earn interest on the Margin for your benefit over the term of the Forward Contract to which it pertains.
2.9 Margin Call.
You acknowledge that the amount of Margin held by Jameson is intended to reflect the Canadian dollar value of each Forward Contract you have purchased, and, as such, the amount required to be delivered by you and held by Jameson as Margin is subject to increase to reflect market movement from the date of your booking the purchase of the Forward Contract. While the Forward Contract remains open, it will be marked-to-market at least daily in order to establish the market, or replacement value of the contract. In the event value of the Forward Contract has decreased, Jameson shall have the sole discretion to make a Margin call as it deems necessary, and shall communicate such Margin call to you orally or in writing or by electronic means, as determined by Jameson. If the Margin call is not satisfied by you within the requested time frame, Jameson shall be entitled to terminate such Forward Contract forthwith and take all necessary steps to liquidate any other outstanding Forward Contracts it holds or has entered into for or on your behalf. You hereby indemnify Jameson for and save it harmless from any losses arising therefrom and Jameson may set-off such losses against the Margin. Any payment made on account of a Margin call shall be treated as a further down payment credited against the amount owing on completion of the Deal or Forward Contract.
2.9 Stop Loss.
Notwithstanding that you may be in the process of providing additional margin payment to
Jameson, you agree that if the marked-to-market value of any of your Forward Contracts deteriorates to a level that could expose Jameson to a loss position, Jameson may at its sole discretion and without prior notice to you liquidate such Forward Contract forthwith and take all necessary steps to liquidate any other any outstanding Forward Contracts it holds or has entered into for or on your behalf. You hereby indemnify Jameson for and save it harmless from any losses arising therefrom and Jameson may set-off such losses against the Margin.
2.10 Right of Set-off.
If you fail to make a payment or delivery when due under this Agreement or under a Deal, Jameson may without prior notice set-off any amount owing by you to Jameson under this Agreement or under any Deal, against any amount owing by Jameson to you on any other Deal, including amounts held as Margin, whether or not they are related to your payment obligation to Jameson. In the event that any Margin is used to set-off any amounts owed by you, you shall forthwith restore the Margin requirements for all Deals to their required levels, failing which Jameson may terminate any or all Deals and you shall be responsible for all of Jameson's damages, including lost profit, as a result of such termination(s).
3. Authority to Deal
3.1 Authorized Person.
You have identified in the New Client Application Form that individual or those individuals who are Authorized to enter into Deals on your behalf, referred to herein as an Authorized Person. You represent and warrant that each Authorized Person has authority to enter into Deals on your behalf and/or to provide Jameson with settlement instructions for completed Deals and that any such Deal will be enforceable against you. You acknowledge Jameson will rely upon those names you have provided to it for the purpose of entering into and completing Deals on your behalf. If an Authorized Person is no longer Authorized to enter into Deals on your behalf, you covenant and agree you will advise Jameson in writing not less than 48 hours prior to the entering into of a Deal. You further covenant and agree to advise Jameson in writing if there are any restrictions on an Authorized Person's authority to enter into Deals and of any changes to those restrictions.
3.2 Continuing Representations and Warranties.
These representations are deemed to be repeated on each date on which you enter into a Deal. You will indemnify and hold harmless Jameson from and against all claims, costs, losses and expenses incurred by Jameson arising out of, or in respect of, any claim that an individual was not Authorized to enter into a Deal on your behalf and/or provide Jameson with settlement and delivery instructions for completed Deals. This indemnity will survive the completion of any Deal or the termination of this Agreement.
4. Records
4.1 Database and Privacy Policy.
Jameson may maintain a database in respect of all your instructions for Jameson, including recordings of your telephone conversations with and instructions to Jameson. Jameson's records will be conclusive and binding on you in any dispute, including in any legal proceeding as the best evidence of your Deals using Jameson, in the absence of clear proof that Jameson's records are erroneous or incomplete. Jameson will also maintain a database in respect of you. All information collected in respect of you will be collected and retained in accordance with Jameson's Privacy Policy. You acknowledge receipt of Jameson's Privacy Policy at or prior to the time of delivery of these Terms and Conditions.
5. Wire Transfers
5.1 Terms and Conditions.
In consideration of Jameson undertaking to wire transfer funds on your behalf and at your direction, you agree to abide by and be bound by the following terms and conditions:
a) You are solely responsible for the accuracy of the account numbers and the routing numbers for the beneficiary bank. Jameson does not verify that the beneficiary's account number or the beneficiary bank's routing number is correct. Jameson's obligation to you is limited to the transfer of funds to the beneficiary account at the beneficiary bank as set out in the Wire Instructions.
b) You are solely responsible to make whatever inquiries to the beneficiary and/or the beneficiary bank as may be reasonably necessary or advisable, in order to determine whether the transfer took place as you intended. Jameson DOES NOT provide any written notice or advice of the wire transfer of funds to the beneficiary, or to the beneficiary bank.
c) Jameson is not obligated to, and in any event may not be able to cancel, amend or stop a wire transfer payment order after it has been given to Jameson for processing.
d) You shall not hold Jameson responsible for any act or omission by any person who is not a Jameson employee acting within the scope of their employment under Jameson's control, nor will Jameson be held responsible for any failure, unavailability or malfunction of communications, electronic or other equipment, which may result in misdelivery, nondelivery or delays in delivery of the funds transferred. You agree that Jameson will not be held responsible for the insolvency, neglect, misconduct, mistake, default, delay, misappropriation, negligence or breach of contract by any other bank, entity or person, in connection with the wire transfer, without regard to any agency relationship those persons or entities may have with Jameson.
e) If notwithstanding the above, Jameson is found to be at fault for misdelivery or non-delivery of the funds subject to this wire transfer order, it's liability shall be limited solely to the amount of the transfer, and you agree further that Jameson will not be held liable or responsible to you or anyone else for any consequential, incidental, special, or indirect losses, damages (including dishonour of checks or other items), or expenses (including legal fees) which may be suffered, sustained, or incurred by reason of this wire transfer order, or the services provided by Jameson hereunder, without regard to Jameson's prior knowledge of the likelihood of such damages.
f) Under no circumstances will Jameson be held responsible to the beneficiary or the beneficiary bank for any damages, claims, losses, expenses, or injuries whatsoever, and you hereby indemnify Jameson against liability for any such claims, damages, losses, expense, or injuries whatsoever which may arise or be asserted by the beneficiary of the beneficiary bank as a result of this wire transfer order or performance (or non-performance) hereunder.
g) Jameson's internal procedures for wire transfers are deemed reasonable. Jameson's failure to follow those internal procedures will not subject Jameson to liability for breach of contract, negligence or any other cause of action.
6. Information Sources
6.1 Market Information.
Market information may from time to time be provided to you through Jameson. This
information has been independently obtained from various information providers through sources believed to be reliable. Neither Jameson nor such information providers guarantee the timeliness, sequence, accuracy or completeness or fitness for a particular purpose of any market information provided through Jameson. Such information may include views, opinions and recommendations of individuals or organizations and you understand that neither Jameson nor the providers of such information necessarily endorse such views or opinions, and that they are not providing any investment, tax, accounting or legal advice to you by including such market information.
7. Limitation of Liability
7.1 No Liability.
Jameson will not, absent gross negligence or willful misconduct by Jameson or its employees, be liable to you for any loss, costs or damages which you incur as a result of you entering into or completing a Deal. For example, and without limitation, Jameson will not be liable:
a) For communication malfunctions that affect the accuracy or timeliness of messages or instructions between you and Jameson and/or which prevent messages from being transmitted in whole or in part;
b) If you make a mistake when providing information or instructions to Jameson, including without limiting the
foregoing, in confirming a Deal or providing a wire instructions;
c) For the conduct of an Authorized Person;
d) Errors made by any financial institution which undertakes the transfer of electronic funds or any financial institution named as a beneficiary bank for the receipt of funds;
e) If a bank draft or certified cheque provided by Jameson to you, an Authorized Person or any of your employees, is lost, misplaced, destroyed or stolen. In particular, Jameson shall not be responsible for the replacement of such bank draft or certified cheque.
7.2 Your Responsibility.
a) You are responsible to ensure the accuracy of settlement and delivery instructions in respect of each and every Deal (including, but not limited to, any wire instructions you may provide). Jameson shall not, in the absence of gross negligence or wilful misconduct, be responsible for failure, delays or errors in the receipt of such instructions and Jameson shall have no liability for consequential or special damages.
b) You agree to maintain security systems, procedures and controls to prevent and detect:
· theft of funds
· forged, fraudulent and unauthorized instructions and electronic transfer of funds by anyone who is not an Authorized Person
· losses due to fraud or unauthorized access to the service by anyone who is not an Authorized Person
c) You agree to make your own arrangements to provide the equipment and software you need to meet your desired levels of service, security and reliability. Equipment includes computer systems and telecommunication devices. All equipment and software must meet our requirements and specifications for the service we are providing. All purchase, installation and maintenance costs will be at your expense.
d) We may, if we choose, specify security procedures for a service, which you must follow. You agree to keep any keys, access codes, security devices and verification procedures safe and confidential, and change them at least as often as the service materials specify. We may establish a routine to verify the source and authenticity of instructions you give us and may verify an instruction before acting on it. We may act on instructions that contain the verification routine without checking authority.
e) For all service materials we give you, including software, you agree:
· we and any lessor or licensor will retain all ownership rights, including any copyright
· you will not disassemble or reverse engineer the software
· you will not copy, remove, modify, transfer, adapt or translate the service materials without our consent
· when we stop providing a service you will delete the applicable software from your computer hardware.
7.3 Limited Liability.
Jameson's liability to you under this Agreement for any breach by Jameson shall be limited to the market movement in foreign exchange rates for the applicable transaction from the order date only. In no event shall Jameson be liable to any person for special, additional or consequential damages as a result of any breach of this Agreement by Jameson
7.4 Force Majeure.
Unless otherwise expressly provided for herein, Jameson shall not be liable for any loss whatsoever or howsoever arising, without limiting the generality of the foregoing, including losses due directly or indirectly from any default or delay caused by wars, acts of terrorism, labour disputes, acts of God, governmental acts, natural catastrophes, acts or omissions of or delays by third-party financial institutions, equipment failures, telecommunications failures, public emergencies, currency market conditions or any other circumstances beyond Jameson's direct control.
8. General
8.1 Entire Agreement. This Agreement is in addition to, and not in substitution of, any other present or future agreement between you and Jameson and is to be read in conjunction with the New Client Application Form and Deal Confirmation.
8.2 Notice of Changes.
Upon prior notice to you, which may include communication via email, facsimile or mail,
Jameson may amend any provision of this Agreement, including any of the Schedules to this Agreement, and your continued dealing with Jameson after the date of any such amendment will constitute for all purposes your agreement and consent to such amendment.
8.3 Governing Law.
This Agreement and all transactions contemplated by it shall be construed and interpreted in accordance with the laws of the Province of Ontario and the laws of Canada applicable therein. Each of the parties shall attorn to the jurisdiction of the Courts within the Province of Ontario having jurisdiction over the subject matter of this Agreement.
8.4 Rights of Termination.
Jameson may terminate this Agreement at any time without notice. You may terminate this Agreement at any time by notifying Jameson in writing in accordance with Section 8.5. Termination of this Agreement by either Jameson or you will not affect any Deals that were entered into prior to such termination, in respect of which this Agreement shall continue until all obligations under those Deals have been performed.
8.5 Delivery of Notices.
Notices which you need to deliver to Jameson must be delivered by mail, courier or fax as follows: Jameson Bank Simcoe Place, Suite 2203, 200 Front Street West, Toronto, Ontario, M5V 3K2. Attention: Compliance Department. Fax No. 416-360-2138. Any notice will be deemed effective: (a) if delivered by mail, on the date it is received by Jameson; (b) if delivered by courier, on the date it is delivered to Jameson; and (c) if delivered by facsimile, on the date that transmission is received in legible form by Jameson, provided any such form of delivery is received by Jameson prior to 4:00 pm (Toronto time) on a Business Day. If received after such time, it shall be deemed to have been received the next immediately following Business Day.
8.6 Language.
You confirm that you have requested this Agreement and all related documents to be drawn up in the English language only. Vous confirmez avoir exigé que ce contrat et tous les documents s'y rapportant soient rédigés en Anglais seulement.
8.7 Acknowledgement.
You agree with and acknowledge receiving a copy of this Agreement.