AGREEMENT FOR PAYMENT ACCOUNTS, IBAN SERVICES, AND FOREIGN EXCHANGE (“FX”) TRADING

This Agreement is between:

JMBCX Trading Limited t/a BCXPay, website www.BCXPay.ca., a Canadian Money Services Business (MSB) licensed and registered with FINTRAC, company number BC1467105, Registered Address: 1533-1771 Robson St, Vancouver, BC V6G 3B7, Canada. FINTRAC Money Services Business Registration Number: C100000019.

And

The Account Holder/User (the “Client”),

for the provision of payment accounts, including European IBAN accounts (for Eurozone payments) and Canadian IBAN-equivalent accounts (for CAD, EURO and USD payments), and foreign exchange services.

DEFINITIONS AND INTERPRETATIONS

1.1 Definitions

In this Agreement:

“Act of Insolvency” has the meaning ascribed to it in Clause 12.3 (Act of Insolvency).

“AEOI” or “Automatic Exchange of Financial Account Information” means one or more of the following, as the context requires: (i) FATCA; (ii) any inter-governmental agreement, treaty, regulation, guidance, standard or any other arrangement between Canada and any other jurisdiction (including between any government bodies in each relevant jurisdiction), entered into to facilitate, implement, comply with or supplement the legislation, regulations, guidance or standards described in (i) above; and (iii) any legislation, regulations or guidance implemented in Canada to give effect to the matters outlined above.

“AEOI Exempt Party” has the meaning ascribed to it in Clause 18.2 (Provision of Information).

“Affiliate” means, in relation to BCXPay, any entity controlled, directly or indirectly, by BCXPay, any entity that controls, directly or indirectly, BCXPay or any entity directly or indirectly under common control with BCXPay. For this purpose, “control” of any entity or person means ownership of a majority of the voting power of the entity or person.

“Agreement” means this agreement and any schedules and appendices attached hereto;

“Applicable Laws” means all federal, provincial, territorial, local and municipal legislation, regulations, statutes, by-laws, decrees, orders, and/or other laws and any other instrument having the force of law as may be issued and in force from time to time relating to or connected with the activities contemplated under this Agreement, including but not limited to anti-money laundering laws administered by FINTRAC.

“Business Day” means a day on which commercial banks are open for business in Vancouver, British Columbia, Canada.

“Close-out Amount” means, with respect to one or more Terminated FX Transactions, the amount of BCXPay’s losses or costs (expressed as a positive number) or gains (expressed as a negative number) that are or would be incurred or realized by BCXPay under then prevailing circumstances to replace, or to provide the economic equivalent of the material terms of the Terminated FX Transactions that remain to be performed, including payments, provided that:

1. Any Close-out Amount will be determined by BCXPay in good faith using commercially reasonable procedures to produce a commercially reasonable result. Each Close-out Amount will be determined by BCXPay as of the Early Termination Date, or as of the date(s) following the Early Termination Date as would, in BCXPay’s sole opinion, be commercially reasonable;
2. In determining a Close-out Amount, BCXPay may consider any relevant information including quotations (firm or indicative) for replacement transactions supplied by third parties regularly engaged in similar transactions, market data or internal information. BCXPay may include, without duplication, costs of funding, and any reasonable loss or cost incurred in connection with BCXPay’s terminating or re-establishing any hedge related to the Terminated FX Transaction(s) (or any resulting gain);
3. Commercially reasonable procedures may include application of pricing or other valuation models used for transactions with unrelated parties, and application of different valuation methods to Terminated FX Transaction(s) depending on the type, size, complexity or number of such transactions; and
4. Unpaid Amounts and expenses referred to in Clause 22 (Fees and Expenses) will be excluded in determinations of Close-out Amounts.

“Close-out Notice” has the meaning ascribed to it in Clause 9.1 (Early Termination).

“Confirmation” has the meaning ascribed to it in Clause 2.3.

“Currency” means money denominated in the lawful currency of any country or territory.

“Default Rate” means a rate per annum equal to the cost (without proof or evidence of any actual cost) to BCXPay (as certified by it) if it were to fund or of funding the relevant amount plus 8% per annum.

“Early Termination Amount” has the meaning specified in Clause 10.2(ii) (Payments on Early Termination).

“Early Termination Date” means the Partial Termination Date and the Full Termination Date, as applicable.

“Electronic Trading Service” or “ETS” means the software, systems and other facilities, including, but not limited to, any BCXPay trading platform, telephone, facsimile, electronic mail and other devices provided by BCXPay under the Agreement, which enables the Client to give electronic Instructions to buy or sell certain foreign Currencies, manage payment accounts (including European IBAN and Canadian IBAN-equivalent accounts), and to obtain information services provided by BCXPay.

“Event of Default” has the meaning specified in Clause 12 (Events of Default).

“Exchange” means the Toronto Stock Exchange and any successor to it.

“FATCA” means sections 1471 through 1474 of the U.S. Internal Revenue Code, any current or future regulations or official interpretations thereof, any agreement entered into pursuant to Section 1471(b) of the Code, or any fiscal or regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement entered into in connection with the implementation of such sections of the Code.

“FINTRAC” means the Financial Transactions and Reports Analysis Centre of Canada.

“Full Terminated Transactions” has the meaning ascribed to it in Clause 9.2 (No Further Payments).

“Full Termination Date” means the date as specified by BCXPay in the Close-out Notice to be the date on which all outstanding FX Transactions shall be terminated in accordance with Clause 9 (Total Close-out).

“FX Transaction” has the meaning ascribed to it in Clause 2.1.

“IBAN Account” means a virtual or dedicated International Bank Account Number (IBAN) provided by BCXPay for European (Eurozone) payments or Canadian IBAN-equivalent accounts for CAD payments, facilitating inbound and outbound transfers, settlements, and related services.

“Insolvency Official” means a trustee, receiver, liquidator, conservator, administrator, judicial manager, custodian or other similar official.

“Liabilities” means all of the Client’s debts, liabilities and obligations, whether present or future, actual or contingent (in each case whether alone or jointly, or jointly and severally, with another person, and whether as principal debtor, guarantor, surety or otherwise, or, where the Clients are more than one natural person, then only debts, liabilities and obligations due, owing or incurred by all of the Clients jointly), to BCXPay or any other member of the BCXPay Group, plus any costs and expenses (including legal fees) which BCXPay or such member(s) of the BCXPay Group may incur in enforcing or maintaining any of their rights, whether under the Agreement or in relation to any FX Transaction, transaction, agreement or otherwise including, without limitation:

1. any debit balance (including but not limited to debit balances arising from a failure to settle any FX Transaction); and
2. all costs, charges and expenses incurred by BCXPay in perfecting or enforcing or attempting to enforce its rights under the Agreement.

“Margin” means any margin requested by BCXPay and deposited by the Client from time to time in accordance with Clause 6 (Margin).

“Margin Notice” means each request or notice given by BCXPay to the Client requiring such Client to provide Margin in accordance with Clause 6 (Margin).

“BCXPay Group” means BCXPay and its Affiliates.

“Partial Close-out Notice” has the meaning ascribed to it in Clause 8.1 (Partial Close-out Notice).

“Partial Terminated Transaction” has the meaning ascribed to it in Clause 8.1 (Partial Close-out Notice).

“Partial Termination Date” means the date specified by BCXPay in a Partial Close-out Notice to be the date on which the relevant outstanding FX Transaction(s) shall be terminated in accordance with Clause 8 (Partial Close-out).

“Party” means each of BCXPay or the Client, as applicable.

“Potential Event of Default” means any event which, with the giving of notice or the lapse of time or both, would constitute an Event of Default.

“Security” has the meaning ascribed to it in Clause 14.2 (Ranking).

“Security Margin” has the meaning ascribed to it in Clause 14.1 (First Fixed Charge).

“Tax” includes any present or future tax, levy, duty or assessment of any nature (including interest and penalties) imposed by any taxing authority other than stamp, registration, documentation or similar tax.

“Terminated FX Transaction” means each of the Partial Terminated Transactions and Full Terminated Transactions, as applicable, subject to an early termination in accordance with Clause 8.1 (Partial Close-out Notice) or Clause 9.1 (Early Termination).

“Termination Currency” means Canadian Dollar or another freely transferable Currency specified by BCXPay.

“Termination Currency Equivalent” means, in respect of an amount denominated in the Termination Currency, such Termination Currency amount and, in respect of an amount denominated in another Currency (“Other Currency”), the amount in the Termination Currency required (as determined by BCXPay) to purchase such amount of such Other Currency on the relevant date at BCXPay’s spot exchange rate (as determined by BCXPay in its sole and absolute discretion) for the purchase of such Other Currency with the Termination Currency.

“Trading Hour” means such trading hour(s) as notified by BCXPay to the Client from time to time, as determined by BCXPay in its sole and absolute discretion.

“Transaction Currency” has the meaning ascribed to it in Clause 5.7 (Payment Currency).

“United Kingdom” means the United Kingdom of Great Britain and Northern Ireland.

“Unpaid Amounts” owing to a Party means, with respect to an Early Termination Date, as determined by BCXPay in a commercially reasonable manner, the aggregate of (i) in respect of all relevant Terminated FX Transactions, the amounts that became payable (or would have become payable but for the non-fulfilment of conditions precedent set out in Clause 5.1 (Conditions Precedent)) to such Party on or prior to such Early Termination Date and which remain unpaid as at such Early Termination Date; and (ii) without double counting, any Early Termination Amount due pursuant to a Partial Close-out Notice but unpaid, in each case together with interest from (and including) the original due date to (but excluding) such Early Termination Date.

1.2 Interpretation

In this Agreement:

1. The headings are for reference only and do not affect the interpretation of this Agreement. Unless the context otherwise requires, “including” is not a word of limitation; “person” includes bodies corporate or unincorporated; one gender includes all genders; and words importing the singular include the plural and vice versa.
2. Each Event of Default shall, upon its occurrence, be deemed continuing unless and until otherwise waived by BCXPay.

2. PURPOSE AND STRUCTURE

2.1

BCXPay is registered as a Money Services Business with FINTRAC to carry on foreign exchange dealing, money transferring, and related activities. This Agreement sets out the terms and conditions applicable to all payment accounts (including European IBAN accounts for Eurozone payments and Canadian IBAN-equivalent accounts for CAD payments), FX transactions which are spot FX Transactions, in each case linked to one or more Currencies, between BCXPay and the Client (each an “FX Transaction” and together, the “FX Transactions”).

2.2

BCXPay will provide payment account services, IBAN services, and FX Transactions only. BCXPay only buys and sells currency for trade, commercial or other non-speculative purposes. BCXPay does not offer or provide advice or investment services of any nature.

2.3

BCXPay is entering into this Agreement, including each FX Transaction and IBAN service, as principal and not as agent of any person or entity.

2.4

An FX Transaction or IBAN-related payment is a transaction agreed between BCXPay and the Client, in any form, including orally. Upon agreement to an FX Transaction or IBAN service, the Parties shall be irrevocably and legally bound by the terms, and BCXPay will issue a confirmation or daily statement specifying and evidencing the specific terms (the “Confirmation”) and will send such Confirmation to the Client in accordance with Clause 23 (Communication). A failure by BCXPay to issue a Confirmation shall not prejudice or invalidate the terms of any FX Transaction or IBAN service. To the extent that any FX Transactions involve derivative products, BCXPay shall upon request provide product specifications and any prospectus or offering documents covering such derivative products.

2.5

The Client shall promptly review each Confirmation sent by BCXPay and, if the Client is of the view that any particular Confirmation does not reflect the Client’s understanding of the relevant FX Transaction or IBAN service, the Client shall notify BCXPay immediately in writing upon receipt of the Confirmation and in any event no later than one Business Day after the date on which the Client receives the Confirmation. If the Client does not receive a Confirmation within two Business Days after the date on which the FX Transaction or IBAN service has been entered into, the Client must promptly notify BCXPay. If BCXPay does not receive any such notification within these time limits, the Confirmation, absent manifest error, shall be binding on both BCXPay and the Client.

2.6

In the event of inconsistency or discrepancy, the terms of the Confirmation for the purpose of the relevant FX Transaction or IBAN service will prevail over the terms of this Agreement, unless otherwise specified in such Confirmation.

2.7

BCXPay may decline to act on any Instruction if BCXPay doubts the authenticity of the Instruction or BCXPay reasonably believes it to be ambiguous or conflicting. BCXPay shall not be liable for any loss that may be incurred by any Client as a result of BCXPay declining to act on any such Instruction or BCXPay acting on any unauthorised Instruction which BCXPay reasonably believes to be genuine. Each Client shall indemnify and reimburse BCXPay for all costs, claims, damages, losses and expenses of reasonable amount which BCXPay may reasonably incur as a result of BCXPay declining to act or acting on any Instruction.

2.8 Order Cancellations:

The Client may amend or cancel the Client’s Instructions that have been previously transmitted. The Client agrees that BCXPay is not obligated to accept such amendment or cancellation. Instructions may only be amended or cancelled prior to the execution. The Client shall accept full responsibility for the transactions, partial or full, executed prior to the processing of the Client’s amendment and/or cancellation request.

2.9 No Guarantee of Executions:

The Client acknowledges the fact that extraordinary events/technical difficulties may prevent or otherwise hinder the execution of the Client’s Instructions. The Client agrees that BCXPay will not be liable for any loss, actual or projected, resulting, directly or indirectly, from government actions, price variations, exchange/market restrictions, equipment, communication and systems failure and breakdowns, unauthorised access or trade Instructions, and other physical and technical restraints and conditions beyond BCXPay’s control. BCXPay shall not be liable for losses arising from the default of any agent or any other party used by BCXPay under this Agreement.

2.10 Quoting Errors:

Should quoting and/or execution errors occur, which may include, but are not limited to, a dealer’s mistype of a quote, a quote or trade which is not representative of fair market prices, an erroneous price quote from a trader, such as but not limited to an erroneous quote due to failure of hardware, software or communication lines or systems and/or inaccurate external data feeds provided by third-party vendors, BCXPay will not be liable for the resulting errors in account balances. In addition, orders must be placed allowing sufficient time to execute, as well as sufficient time for the system to calculate necessary margin requirements. The execution of orders placed too close to prices, which would trigger other orders (regardless of order type) or a margin call, cannot be guaranteed. BCXPay will not be liable for the resulting margin call, resulting balance, and/or positions in the account due to the system not having been allowed sufficient time to execute and/or calculate accordingly. The foregoing list is not meant to be exhaustive and in the event of a quoting or execution error, BCXPay reserves the right to make the necessary corrections or adjustments on the account involved. Any dispute arising from such quoting or execution errors will be resolved by BCXPay in its sole and absolute discretion. The Client agrees to indemnify and hold BCXPay harmless from all damages or liability as a result of the foregoing.

3. SCOPE

On the coming into effect of this Agreement, all payment accounts, IBAN services, FX Transactions then outstanding, or which may be entered into thereafter, between the Parties, are deemed to be governed by this Agreement and any confirmation or other confirming evidence (including, without limitation, by way of SWIFT) is deemed to be a Confirmation under and forming part of the Agreement.

4. SINGLE AGREEMENT

All payment accounts, IBAN services, and FX Transactions are entered into on the condition that this Agreement, together with all Confirmations, documents and other confirming evidence form one single agreement between the Parties (collectively referred to as the “Agreement”). The Parties acknowledge that all such services and transactions are entered into in reliance upon such fact, it being understood that the Parties would not otherwise enter into any. The Client also hereby agrees to sign the document attached in Annex 2.

5. PAYMENT

5.1 Conditions Precedent

Unless otherwise waived by BCXPay, BCXPay’s obligations under Clause 5.2 (Manner) below are subject to the condition precedent that:

1. no Event of Default or Potential Event of Default with respect to the Client has occurred and is continuing;
2. no Early Termination Date has been effectively designated by BCXPay in respect of one or more FX Transactions or IBAN services; and
3. any other condition as may be specified in the Agreement to be a condition precedent for the purposes of this Clause 5.1 (Conditions Precedent).

5.2 Manner

1. Each Party will make each payment specified in each Confirmation to be made by it, subject to the provisions of the Agreement.
2. Payments under the Agreement will be made on the due date for value on that date in the place of the account specified in the relevant Confirmation or otherwise pursuant to the Agreement. Payments will be made in freely transferable and cleared funds and in the manner customary for payments in the relevant Currency and, in case of payments by the Client to BCXPay, in accordance with BCXPay’s instructions. For IBAN accounts, payments may be processed via SEPA (for European IBAN) or EFT/ACH (for Canadian IBAN-equivalent accounts).

5.3 Withholding and Gross-Up

1. All payments by the Client in respect of any FX Transaction or IBAN service under the Agreement will be made without deduction or withholding for or on account of any Tax unless required by Applicable Law. If the Client is required to deduct or withhold, the Client will:
   1. promptly notify BCXPay;
   2. promptly pay to the relevant authority the full amount required to be deducted or withheld upon determining that such deduction or withholding is required and send BCXPay an official receipt (or a certified true copy) and all such other documentation reasonably accepted by BCXPay as evidence of such payment; and
   3. pay to BCXPay, in addition to the payment to which BCXPay is otherwise entitled under the Agreement, an additional amount to ensure that the net amount actually received by BCXPay (free and clear of Taxes) equals the full amount BCXPay would have received had no deduction or withholding been required.
2. If BCXPay is required, pursuant to the AEOI or otherwise by law, to withhold or deduct any AEOI withholding taxes (including any penalties or interest payable in connection with any failure to pay or any delay in paying any such taxes) on any payments to the Client, BCXPay may deduct such taxes and BCXPay will not be required to increase any payment in respect of which BCXPay makes such withholding. The Client shall be treated for all purposes of the Agreement as if the Client had received the full amount of the payment, without any deduction or withholding. The Client shall provide BCXPay with additional documentation reasonably requested by BCXPay to determine the amount to deduct and withhold from such payment. If the Client fails to provide BCXPay with such documentation in accordance with BCXPay’s request, BCXPay may determine the amount to be deducted or withheld in its reasonable discretion and shall not be liable for any loss incurred to the Client as a result of such determination.

5.4 Payment Netting

If on any date amounts in respect of one or more FX Transactions or IBAN services would otherwise be payable in the same Currency by one Party to the other, then, on such date, each Party’s obligation to make payment of any such amount will be automatically satisfied and discharged and, if the aggregate amount that would otherwise have been payable by one Party exceeds the aggregate amount that would otherwise have been payable by the other Party, replaced by an obligation upon the Party by which the larger aggregate amount would have been payable to pay to the other Party the excess of the larger aggregate amount over the smaller aggregate amount.

5.5 Set-off

1. Unless expressly provided otherwise in the Agreement, all sums payable by the Client under the Agreement shall be paid in full without set-off or counterclaim or any restriction or condition.
2. In addition to any right of set-off, offset, combination of accounts, lien, right of retention or withholding or similar right BCXPay may have under the Agreement or by law, BCXPay may, without prior notice to the Client or any other person, set off any sum or obligation (whether or not arising under the Agreement, whether matured or contingent and irrespective of the Currency, place of payment or booking office of the sum or obligation) owed by the Client to BCXPay or any Affiliate of BCXPay against any sum or obligation (whether or not arising under the Agreement, whether matured or contingent and irrespective of the Currency, place of payment or booking office of the sum or obligation) owed by BCXPay or any Affiliate of BCXPay to the Client.
3. For the purpose of paragraph (ii) above, any relevant sum or obligation may be converted by BCXPay into the Currency in which another is denominated at the rate of exchange determined by BCXPay.
4. If an obligation is contingent or unascertained, BCXPay may in good faith estimate the amount of that obligation and set-off in respect of such estimated amount.
5. This Clause 5.5 (Set-off) shall not constitute or create a charge or other security interest.

5.6 Interest and Compensation

1. If the Client fails to make any payment under the Agreement when due, the Client will, to the fullest extent permitted by law, pay to BCXPay interest (before and after judgment) on such unpaid amount, from (and including) the due date to (but excluding) the date of actual payment, at the Default Rate, as determined by BCXPay.
2. Interest under this Clause 5.6 (Interest and Compensation) will be calculated by BCXPay on the basis of daily compounding and the actual number of days elapsed.

5.7 Payment Currency

1. Each payment under the Agreement or any FX Transaction or IBAN service by the Client to BCXPay will be made in the Currency in which such payment is to be made as specified by BCXPay (the “Transaction Currency”). If for any reason the amount received by BCXPay (converted to the Transaction Currency at a rate determined by BCXPay in a commercially reasonable manner) falls short of the amount in the Transaction Currency payable to BCXPay, the Client will, to the extent permitted by Applicable Law, immediately pay such additional amount in the Transaction Currency (calculated by BCXPay) necessary to make good the shortfall, to the satisfaction of BCXPay.
2. To the extent permitted by Applicable Law, if any judgment or order expressed in a Currency other than the Currency of liability is rendered in BCXPay’s favour (i) for the payment of any amount owing under the Agreement or (ii) for the payment of any amount relating to any early termination of any FX Transaction or IBAN service in accordance with the Agreement or (iii) in respect of a judgment or order of another court for the payment of any amount described in section (i) and/or (ii) above, BCXPay shall, after recovery in full of the aggregate amount to which BCXPay is entitled pursuant to the judgment or order, be entitled to receive immediately from the Client the amount of any shortfall of the Currency of liability converted into the Currency of the judgment or order for the purposes of such judgment or order at the rate of exchange determined by BCXPay. The term “rate of exchange” includes, without limitation, any premiums and costs of exchange payable in connection with the purchase of or conversion into the relevant Currency.

6. MARGIN

6.1

The Client agrees that all amounts standing to the credit of the Client shall be deemed Margin provided by the Client for the purpose of performing its obligations under the Agreement and shall be provided in accordance with this Clause 6 (Margin) and other terms and conditions signed or accepted by or on behalf of the Client that apply to or govern the credit / margin requirements, interest charges, margin calls and the circumstances under which the Client’s positions may be closed without the Client’s consent.

6.2

BCXPay shall provide the Client with a statement specifying, amongst other things, its calculation of the marked-to-market value of all outstanding FX Transactions and IBAN-related positions as of the immediately preceding Business Day, and any additional Margin that the Client is required to pay to BCXPay in accordance with Clause 6.3 (Undertaking to Pay Margin) below. The calculation of the marked-to-market value of any FX Transaction shall be calculated by BCXPay in accordance with the reference prices provided by liquidity providers of BCXPay or as determined by BCXPay in a commercially reasonable manner.

6.3 Undertaking to Pay Margin

In respect of each FX Transaction or IBAN service under which the Client may incur a Liability to BCXPay, the Client shall deposit additional amounts in specified Currency to BCXPay as Margin in accordance with each Margin Notice received from BCXPay, the amount of which shall be calculated in whatever manner BCXPay may determine in its absolute discretion.

6.4 Holding of Margin

BCXPay will hold all Margin in accordance with Applicable Laws, including FINTRAC requirements for client funds segregation, on trust for the following beneficiaries in the following order of priority:

1. for BCXPay to the extent of all sums due or which may become due to BCXPay under or pursuant to the Agreement; and
2. for the Client to the extent of any surplus which remains following payment of all those sums due from the Client to BCXPay under the Agreement, subject to any right of set-off (or any other similar rights) in accordance with Clause 5.5 (Set-off).

6.5 Failure to Meet Margin Calls

Margin will be due for payment by the time and date specified in the Margin Notice and may require payment by close of business on the same day. If the Client fails to meet any margin calls when due, such failure will constitute an Event of Default and BCXPay will be entitled to exercise any of its rights set out in the Agreement.

7. POWERS TO CLOSE OUT

Upon the occurrence of an Event of Default, without prejudice to any other rights under the Agreement or under any FX Transaction, IBAN service, contract or law, BCXPay may, without prior reference to the Client, take any and all actions that BCXPay considers to be necessary or desirable in the circumstances, including, but not limited to the following:

1. to terminate one or more FX Transactions or IBAN services pursuant to Clause 8 (Partial Close-out); or
2. to terminate all FX Transactions or IBAN services pursuant to Clause 9 (Total Close-out); and/or
3. to close out, replace or reverse any FX Transaction or IBAN position, buy, sell, borrow or lend, or enter into any other transaction or take, or refrain from taking, such other action as BCXPay, in its absolute discretion, considers necessary or appropriate to cover, reduce or eliminate any loss or liability it may suffer or incur as a result of such Event of Default.

8. PARTIAL CLOSE-OUT

8.1 Partial Close-Out Notice

Without prejudice to any other rights of BCXPay under the Agreement or under any FX Transaction, IBAN service, contract or law, upon the occurrence of an Event of Default, BCXPay may by notice to the Client (a “Partial Close-out Notice”) (and BCXPay may give one or more Partial Close-out Notices in respect of any one or more FX Transactions or IBAN services at any time while an Event of Default is continuing):

1. declaring that (1) such outstanding FX Transaction(s) or IBAN service(s) as is/are specified in the Partial Close-out Notice (each such, a “Partial Terminated Transaction”) shall be terminated on the relevant Partial Termination Date in accordance with the terms of the Agreement; and (2) the performance of the respective obligations of the Parties with respect to payments under each such Terminated FX Transaction or IBAN service shall be effected in accordance with Clauses 8.2 (Amounts Determined) and Clause 10 (Consequences of an Event of Default), and
2. designating any Business Day as the Partial Termination Date in respect of such FX Transactions or IBAN services, provided that, if (a) a Close-out Notice shall be given in respect of an FX Transaction or IBAN service that is a Partial Terminated Transaction specified in a Partial Close-out Notice given on or prior to the date of such Close-out Notice, and (b) the Partial Termination Date in respect of such has not occurred at the time such Close-out Notice shall be given, this Clause 8 (Partial Close-out) shall cease to apply to such and the terms set out in Clause 9 (Total Close-out) shall apply.

8.2 Amounts Determined

1. BCXPay will determine the Early Termination Amount payable in respect of all Partial Terminated Transactions in accordance with Clause 10 (Consequences of an Event of Default).
2. If BCXPay gives a Partial Close-out Notice under Clause 8.1 (Partial Close-out Notice), all rights of the Parties under the Agreement shall be subject to the provisions of Clause 10.4 (Pre-Estimate).

9. TOTAL CLOSE-OUT

9.1 Early Termination

Upon the occurrence of an Event of Default, without prejudice to any other rights under the Agreement or under any FX Transaction, IBAN service, contract or law, BCXPay may by notice to the Client (a “Close-out Notice”) declare that the provisions of this Clause 9 (Total Close-out) will apply and designate any Business Day as the Full Termination Date in respect of all outstanding FX Transactions and IBAN services under the Agreement, whether or not such Event of Default is continuing on that Business Day. However, no Close-out Notice is required to be given following the occurrence of an Event of Default described in Clause 12.3 (Act of Insolvency) in order for the provisions of Clauses 9.2 (No Further Payments) and 9.3 (Amounts Determined) to apply.

9.2 No Further Payments

Upon the giving of a Close-out Notice under Clause 9.1 (Early Termination), or the occurrence of an Event of Default described in Clause 12.3 (Act of Insolvency):

1. no further payments under the Agreement in respect of any outstanding FX Transaction or IBAN service will be required to be made, but without prejudice to the other provisions of the Agreement;
2. all outstanding FX Transactions and IBAN services (the “Full Terminated Transactions”) will, to the extent possible, be terminated on the Full Termination Date in accordance with the Agreement; and
3. all other amounts owing under the Agreement will be payable on the Full Termination Date.

9.3 Amounts Determined

1. BCXPay will determine the Early Termination Amount payable in respect of all Full Terminated Transactions in accordance with Clause 10 (Consequences of an Event of Default).
2. Where an Event of Default described in Clause 12.3 (Act of Insolvency) shall have occurred, or if BCXPay gives a Close-out Notice under Clause 9.1 (Early Termination), all rights of the Parties under the Agreement shall be subject to the provisions of Clause 10.4 (Pre-Estimate).

10. CONSEQUENCES OF AN EVENT OF DEFAULT

10.1 Early Termination

1. Upon the occurrence or effective designation of a Partial Termination Date or the Full Termination Date, no further payments under Clause 5.2 (Manner) in respect of the Partial Terminated Transactions or the Full Terminated Transactions (as applicable) will be required to be made, but without prejudice to the other provisions of the Agreement. The amount, if any, payable in respect of an Early Termination Date will be determined pursuant to Clause 10.2 (Payments on Early Termination).
2. On or as soon as reasonably practicable following the occurrence or designation of an Early Termination Date, BCXPay will make the calculations contemplated by Clause 10.2 (Payments on Early Termination) and will provide to the Client a statement (i) showing, in such detail as BCXPay in its sole and absolute discretion deems appropriate, such calculations (including any quotations, market data or information from internal sources used in making such calculations), (ii) specifying any Early Termination Amount (as defined below) payable and (iii) giving details of the relevant account to which any amount payable to BCXPay is to be paid.
3. An Early Termination Amount due in respect of any designated Early Termination Date will be payable on the day on which BCXPay shall by notice specify such amount is to be payable, together with interest in the Termination Currency from (and including) the relevant Early Termination Date to (but excluding) the date such amount is paid (before and after judgment).

10.2 Payments on Early Termination

1. If an Early Termination Date has been designated, the amount, if any, payable in respect of that Early Termination Date will be determined by BCXPay under this Clause 10.2 (Payments on Early Termination).
2. The amount payable in respect of the relevant Early Termination Date will be an amount (the “Early Termination Amount”) expressed in the Termination Currency Equivalent equal to (i) the sum of the Close-out Amount(s) (positive or negative) and the Unpaid Amounts owing to BCXPay less (ii) the Unpaid Amounts owing to the Client, in each case, for each Terminated FX Transaction or group of Terminated FX Transactions in respect of such Early Termination Date. If the Early Termination Amount is a positive number, the Client will pay the amount calculated to BCXPay. If it is a negative number, BCXPay will pay the absolute value of that amount to the Client.

10.3 Changes in Law affecting BCXPay

If on or after the Agreement or any FX Transaction or IBAN service is entered into, by reason of any change in law or regulation or any force majeure, BCXPay determines in good faith that it has become unlawful for BCXPay to comply with any material provision of the Agreement or any FX Transaction or IBAN service, or that BCXPay will incur a materially increased cost in performing BCXPay’s obligations under the Agreement or any FX Transaction or IBAN service (including any adverse effect on BCXPay’s tax position), BCXPay may by notice to the Client terminate any FX Transaction or IBAN service in accordance with the provisions of Clauses 8 (Partial Close-out) or 9 (Total Close-out) as if an Event of Default has occurred and such is/are the sole Terminated FX Transaction(s) or service(s), or terminate the Agreement and/or other FX Transactions or IBAN services more generally.

10.4 Pre-Estimate

The Parties agree that an amount recoverable under Clause 10.2 (Payments on Early Termination) above is a reasonable pre-estimate of loss and not a penalty. Such amounts are payable for loss of bargain and loss of protection against future risks. Neither Party will be entitled to any additional damages in respect of any Terminated FX Transactions or IBAN services, except as otherwise expressly provided in the Agreement.

10.5 Survival

Clause 10 (Consequences of an Event of Default) shall survive the termination of the Agreement.

11. ADDITIONAL RIGHTS

11.1 Additional Rights

Whether or not an Event of Default has occurred, BCXPay shall have rights described in Clauses 11.2 (Pre-Condition to Payment), 11.3 (Conditions of the Deposit) and 11.4 (Currency Conversion).

11.2 Pre-Condition to Payment

Any obligation BCXPay may have to pay or repay any amounts (whether as collateral or otherwise) shall be conditional upon there being no outstanding Liabilities (whether or not then due or payable), no outstanding FX Transaction or IBAN service under which Liabilities could arise, and the complete, final and unconditional payment, satisfaction and discharge in full, of all other Liabilities.

11.3 Conditions of the Return

Regardless of the terms on which moneys are credited, the Client shall be entitled to repayment of the amounts if and only if:

1. there is no outstanding FX Transaction or IBAN service under which Liabilities could arise;
2. the Liabilities have been paid and discharged in full; and
3. BCXPay remains under no further obligation to pay or repay any money (apart from the repayment of the amount) to the Client, and until that time the Client shall not request, demand or claim to be entitled to withdraw the relevant amount except (without prejudice to BCXPay’s rights under the Agreement) as BCXPay may in its absolute discretion from time-to-time permit.

11.4 Currency Conversion

BCXPay may for any purpose under the Agreement effect any necessary currency conversions at whatever rate of exchange determined by BCXPay in a commercially reasonable manner, subject to any Applicable Law or regulations.

12. EVENTS OF DEFAULT

The occurrence of each of the following will be an “Event of Default” for the purposes of the Agreement and the Client shall be deemed to be in default under all other transactions and agreements between BCXPay and the Client, without regard to any notice to be given, any grace periods or any other conditions to be satisfied:

12.1 Failure to Pay

The Client fails to make any payment or meet any margin call on the due date.

12.2 Default in other Obligations

The Client fails to perform any of its or his other obligations under the Agreement.

12.3 Act of Insolvency

The occurrence of any of the following (each an “Act of Insolvency”):

1. The Client commences:
   1. negotiations with one or more creditors with a view to reorganising or rescheduling any of the Client’s indebtedness; or
   2. a voluntary case or other procedure seeking or proposing bankruptcy, liquidation, reorganisation, rescheduling, an arrangement or composition, a freeze, standstill or moratorium, or other similar relief with respect to the Client or the Client’s debts, or other arrangements with respect to merger with or consolidation of another entity or any other form of restructuring under any bankruptcy, insolvency, regulatory, supervisory or similar law (including any corporate or other law with potential application to the Client, whether the Client is solvent or insolvent), or seeking the appointment of an Insolvency Official in respect of the Client or any substantial part of the Client’s assets; or
   3. any corporate action to authorise any of the foregoing;
2. An involuntary case or other procedure is commenced against the Client seeking or proposing bankruptcy, liquidation, reorganisation, an arrangement or composition, a freeze, standstill or moratorium, or other similar relief with respect to the Client or the Client’s debts under any bankruptcy, insolvency, regulatory, supervisory or similar law (including any corporate or other law with potential application to the Client, if insolvent) or seeking the appointment of an Insolvency Official in respect of the Client or any substantial part of the Client’s assets;
3. The Client is unable to pay its debts as they fall due or is bankrupt or insolvent, as defined under any bankruptcy or insolvency law applicable to the Client or any indebtedness of the Client is not paid on the due date therefor, or becomes capable at any time of being declared, due and payable under agreements or instruments evidencing such indebtedness before it would otherwise have been due and payable, or proceedings relating to the Agreement are commenced for any execution, any attachment or garnishment, or distress against, or an encumbrancer takes possession of, the whole or any part of the Client’s property, undertaking or assets (tangible and intangible);
4. The Client is dissolved, or, if the Client’s capacity or existence is dependent upon a record in a formal register, the registration is removed or ends, or any procedures are commenced seeking or proposing the Client’s dissolution, removal from such a register, or the ending of such a registration; and
5. The Client’s management or operations are temporarily or permanently taken over by or become subject to the supervision of any governmental or quasi-governmental authority.

The Client will use its best efforts to notify BCXPay immediately if an Act of Insolvency occurs in relation to the Client.

12.4 Representations Incorrect

Any representation made by the Client in or pursuant to the Agreement was incorrect or untrue in any material respect when made or repeated or deemed to have been made or repeated or becomes incorrect at any time.

12.5 Cross Default

1. A default, potential event of default, event of default, termination event (however described) occurs or is declared in respect of the Client under any transaction or agreement (whether or not arising under the Agreement) between (a) the Client or any of its affiliates (where applicable) and (b) BCXPay or any of its Affiliates, or any other event specified for these purposes otherwise occurs; or
2. In relation to the Client or any of the Client’s affiliates (where applicable), any indebtedness or other financial obligation is not paid or met at its stated maturity (or within any applicable grace period) or, by reason of any default, potential event of default, event of default, termination event (however described) on the part of the Client or any of the Client’s affiliates, becomes due prior to its stated maturity or, if payable or repayable on demand, when so demanded.

12.6 Repudiation

The Client (or any Insolvency Official acting on its or his behalf) disaffirms, disclaims, repudiates or rejects, in whole or in part, or challenges the validity of the Agreement, any Confirmation, any FX Transaction, any IBAN service or any obligation under the Agreement.

12.7 Breach of Applicable Regulations

An event occurs or circumstances arise or exist which BCXPay reasonably considers are or might be a violation of any Applicable Laws, rules and regulation or good standard of market practice, including FINTRAC requirements.

12.8 Material Adverse Change

The Client or any of its Affiliates (where applicable) suffers a material adverse change in financial condition, results, prospects, properties, business or operations as determined by BCXPay in its sole and absolute discretion.

12.9 Change in Law

In the reasonable opinion or belief of BCXPay, there is or may be a change in or adoption of a new law, regulation or policy or in its interpretation or administration or in the requirements, guidance or policy of any monetary, fiscal or other competent authority in or affecting the law of the jurisdiction of the Client’s incorporation or domicile or residence or the jurisdiction of any currency, including without limitation imposition of capital or exchange controls or moratoria, which might, in any such case, have an adverse effect on the ability of:

1. the Client or BCXPay to make or receive any payment under the Agreement or any FX Transaction or IBAN service; or
2. either party to any hedging transaction entered into in connection with BCXPay’s hedging of any FX Transaction to make or receive any payment under that hedging transaction.

12.10 Criminal Proceedings or Incarceration

The Client becomes subject to any criminal proceedings in any jurisdiction in which the Client is alleged to have been dishonest.

12.11 Material Decrease in Net Asset Value

There occurs a material decrease in the Client’s net asset value (measured solely by reference to the assets held by or under the control of BCXPay or its Affiliates and liabilities owed to BCXPay or its Affiliates), as determined by BCXPay in a commercially reasonable manner.

12.12 Transfer of Assets

The Client transfers all or substantially all of its assets to another person.

12.13 Ability to Perform Obligations Adversely Affected

Any action is taken, or event occurs which might have a material adverse effect upon the Client’s ability to perform any of its or his obligations under the Agreement or any other transaction or agreement between the Client and BCXPay, as determined by BCXPay in its sole and absolute discretion.

12.14 Hedging Disruption

BCXPay is unable or would incur a materially increased cost, as determined by BCXPay in its sole and absolute discretion, after using commercially reasonable efforts, to (a) acquire, establish, re-establish, substitute, maintain, unwind or dispose of any transaction(s) or asset(s) it deems necessary to hedge the price risk of BCXPay entering into and performing its obligations with respect to or in connection with the FX Transactions or IBAN services, or (b) realise, recover or remit the proceeds of any such transaction(s) or asset(s).

12.15 Partnerships

Where the Client is a partnership, an Act of Insolvency or an Event of Default occurs in respect of one or more of the Client or its partners.

13. WARRANTIES AND REPRESENTATIONS

The Client makes the following warranties, representations and undertakings on entry into the Agreement, each of which are deemed to be repeated by the Client on each date on which an FX Transaction or IBAN service is entered into:

1. The Client is duly organized and validly existing under the law of the jurisdiction of its organization or incorporation and, if relevant under such laws, in good standing.
2. The Client has the power to enter into, deliver and perform the Agreement, the FX Transactions, and IBAN services and has taken all necessary action to authorise its entry, delivery and performance of the same.
3. Such entry, delivery and performance in relation to the Agreement, the FX Transactions, and IBAN services does not violate or conflict with the Client’s constitutional documents (if applicable), or any law, order or requirement of any court or government agency, or any contractual obligation affecting the Client or any of its assets.
4. All governmental and other authorisations, consents, notices or filings required to be obtained by the Client with respect to the Agreement, the FX Transactions, and IBAN services have been obtained and are in full force and effect and all related conditions have been complied with.
5. The Client’s obligations under the Agreement, the FX Transactions, and IBAN services constitute its legal, valid and binding obligations enforceable in accordance with its respective terms (subject to applicable bankruptcy, reorganization, insolvency, moratorium or similar laws affecting creditors’ rights generally and subject, as to enforceability, to equitable principles of general application (regardless of whether enforcement is sought in a proceeding in equity or at law)).
6. No Event of Default or Potential Event of Default with respect to the Client has occurred and is continuing, and no such event or circumstance would occur as a result of the Client entering into or performing its obligations under the Agreement, the FX Transactions, and IBAN services.
7. There is no pending or, to the Client’s knowledge, threatened against the Client, any action, suit or proceeding at law or in equity or before any court, tribunal, government body, agency or official, or any arbitrator that is likely to affect the legality, validity or enforceability of the Agreement, the FX Transactions, and IBAN services or the Client’s ability to perform its obligations under the Agreement, the FX Transactions, and IBAN services.
8. All applicable information that is furnished in writing by or on behalf of the Client to BCXPay is, as of the date of the information, true, accurate and complete in every material respect.
9. Unless notified otherwise to BCXPay in writing before the date of the Agreement, no deduction or withholding (whether on account of Taxes or otherwise) will be required to be made under any Applicable Law from any payment to be made by the Client under the Agreement, the FX Transactions, and IBAN services.
10. The Client has filed all Tax returns which are required to be filed by it and has paid all Taxes and assessments which have become due and payable by it, other than those not yet delinquent and except for those contested in good faith.
11. The Client has made its own independent decisions to enter into the Agreement, and each FX Transaction or IBAN service entered into thereunder and as to whether the Agreement, and each FX Transaction or IBAN service is appropriate or proper for it based upon its own judgment and upon advice from such advisers as it has deemed necessary. The Client is not relying on any communication (written or oral) of BCXPay as investment advice or as a recommendation to enter into the Agreement, or any FX Transaction or IBAN service, it being understood that information and explanations related to the terms and conditions of an FX Transaction or IBAN service will not be considered investment advice or a recommendation to enter into that FX Transaction or IBAN service. No communication (written or oral) received from BCXPay will be deemed to be an assurance or guarantee as to the expected results of an FX Transaction or IBAN service. BCXPay is not acting as a fiduciary for or an advisor to the Client in respect of the Agreement, any FX Transactions, or IBAN services.
12. Except where expressly agreed otherwise, the Client is entering into the Agreement, and any FX Transaction or IBAN service thereunder, as principal and not as agent for any other person or entity.
13. The Client has read and understood (on its own behalf or through independent professional advice) the terms, conditions and risks of the Agreement, including any FX Transactions or IBAN services entered into thereunder, including in particular the risk disclosure statements in Annex 1 (Risk Disclosure Statements) below. The Client is capable of assessing the merits of, and acknowledges and agrees that it understands and accepts the degree of risk involved in the entry into of the Agreement and any FX Transactions or IBAN services (on its own behalf or through independent professional advice which it has been advised to obtain before entering into this Agreement or any FX Transaction or IBAN service); in particular, the Client acknowledges and agrees that it understands terms of the Agreement, the nature of the FX Transactions and IBAN services contemplated under the Agreement, and that such are subject to complex risks which may arise without warning and may result in substantial losses.
14. The Client will obtain and maintain in full force and effect all consents of any governmental or other authority (including any licences), authorisations, notices or filings of any government or other authority that may be required to be obtained by the Client with respect to the Agreement, the FX Transactions, and IBAN services and will use all reasonable efforts to obtain any consents that may become necessary in the future.
15. The Client will comply in all material respects with Applicable Law.
16. The Client will pay any stamp, registration, documentation or similar tax (“Tax”) imposed upon it or in respect of its execution or performance of the Agreement or any FX Transaction or IBAN service and will indemnify BCXPay against any Tax levied or imposed upon BCXPay or in respect of BCXPay’s execution or performance of the Agreement, the FX Transactions, and IBAN services.
17. The Client will deliver to BCXPay:
    1. within seven (7) days of BCXPay’s request, financial information satisfactory to BCXPay which fairly represents the Client’s financial condition on the dates and for the periods covered by such information, provided that, if the Client is a listed company, such disclosure is consistent with applicable listing rules;
    2. as soon as available and in any event within 150 days after the end of each financial year, copies of its audited (and, if applicable, consolidated) accounts for that financial year;
    3. promptly, in writing, details of any material litigation, arbitration or administrative proceeding against it; and
    4. immediately, in writing, details of the occurrence of any Event of Default or Potential Event of Default in respect of the Client and of any steps being taken by the Client to remedy any such event.
18. The Client will provide or deliver to BCXPay such collateral as BCXPay may require to secure or collateralise the Client’s obligations to BCXPay under the Agreement, the FX Transactions, and IBAN services, on such terms or under such arrangements as BCXPay may request. BCXPay reserves the right, at any time and from time to time, in its sole discretion, to establish, increase or decrease such collateral requirements.
19. The Client will complete and deliver to BCXPay all relevant Tax forms as may be necessary under the terms of the Agreement, or as BCXPay may from time-to-time request.
20. The Client will, if BCXPay so requests, deliver to BCXPay a legal opinion provided by the Client’s legal counsel in form and substance satisfactory to BCXPay upon execution of the Agreement or at any time following execution of the Agreement.
21. The Client will execute in BCXPay’s favour from time to time any documents as may reasonably be required and deemed by BCXPay as necessary, desirable or appropriate in connection with the Agreement or any FX Transaction or IBAN service, in form and substance acceptable to BCXPay.
22. The Client will give notice to BCXPay of any failure of a representation made by it under Clause 13 above to be accurate and true promptly upon learning of such failure.
23. The Client will not close or terminate the Account without prior consent from BCXPay.

14. UNAUTHORISED AND INCORRECT TRANSACTIONS

14.1

BCXPay will not be responsible:

1. if a payment is made incorrectly, unless the Client notifies BCXPay of the incorrect payment without undue delay, and in any event within 5 Business Days after the debit date; or
2. for any unauthorised transactions, unless the Client notifies BCXPay of the unauthorised payments without undue delay, and in any event within 5 Business Days after the debit date.

14.2

Both Parties hereby acknowledge and agree that, pursuant to applicable Canadian payment regulations and FINTRAC guidelines:

1. the information requirements for payment services do not apply beyond what is set out in this Agreement, and BCXPay will provide the Client with such information as required herein;
2. BCXPay’s obligations to the Client related to any payment transactions (including via IBAN accounts) under the Agreement will be only the obligations set out in this Agreement;
3. the maximum time period for reporting unauthorised or incorrectly executed payment transactions is varied to the maximum notification set out in clause 14.1.

15. LIABILITY

15.1

All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Agreement.

15.2

References to liability in this clause 15 include every kind of liability arising under or in connection with this Agreement (and/or the performance or contemplated performance of the services), including liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise.

15.3

If BCXPay fails to comply with BCXPay’s obligations under the Agreement, then, subject as set out below, BCXPay will be responsible to the Client for the loss or damage the Client suffers that is a foreseeable result of BCXPay breaking the Agreement. However, BCXPay will not be responsible for loss or damage that is not foreseeable, whether such loss or damage arises as a result of BCXPay breaching the Agreement or otherwise. Loss or damage is foreseeable if either it is obvious that it will happen or, if at the time BCXPay entered into the Agreement, both the Client and BCXPay knew that it might happen.

15.4

BCXPay will not be responsible to the Client for any:

1. loss of revenue, profits, interest, reputation, anticipated savings;
2. loss of agreements or contracts;
3. loss of use or corruption or restitution of software, data or information;
4. loss of or damage to goodwill; and
5. indirect, special or consequential damage or loss, whether or not BCXPay has been informed of the possibility of any such liability, loss or damage.

15.5

BCXPay will not be responsible to the Client for any losses the Client suffers or costs that the Client incurs because:

1. BCXPay relied on any information the Client provided to BCXPay;
2. BCXPay acted in accordance with this Agreement;
3. the Client breached the Agreement or failed to perform the obligations BCXPay reasonably expected the Client would perform in accordance with the Agreement;
4. the Client failed to realise the anticipated savings or benefits of a transaction; or
5. BCXPay failed to fulfil BCXPay’s obligations under the Agreement as a result of:
   1. the actions or omissions of any third party that are outside BCXPay’s control;
   2. any planned or essential maintenance to BCXPay’s systems;
   3. any changes in Applicable Laws or regulations that BCXPay have to comply with; or
   4. any abnormal and unforeseeable circumstances beyond BCXPay’s control, the consequences of which would have been unavoidable despite all efforts to the contrary.

15.6

Subject to clause 15.7 (liabilities which cannot legally be limited), BCXPay’s total liability to the Client under the Agreement shall not exceed the total net revenue accrued to and received by BCXPay from the Client in the preceding 6-month period (from when the damage or liability first arose), but, in any event, shall always be subject to the liability requirements provided for in Applicable Laws, including FINTRAC guidelines.

15.7

Nothing in the Agreement limits any liability which cannot legally be limited including liability for:

1. death or personal injury caused by negligence;
2. fraud or fraudulent misrepresentation made by BCXPay or on BCXPay’s behalf on which the Client relied;
3. breach of the terms implied by applicable Canadian consumer protection laws; or
4. any other liability which, by Applicable Laws, cannot be excluded or limited.

15.8

This clause 15 shall survive termination of the Agreement.

16. INFORMATION AND PERSONAL DATA

16.1 Accuracy

The Client shall promptly notify BCXPay of any material change to the Client’s information (such as name, address, registration status, registration number and its controlling shareholders). BCXPay may conduct any enquiries to verify the Client’s information.

16.2 Use

The Client irrevocably authorises and consents to the disclosure and/or the transfer of any information relating to any of its accounts with BCXPay and any customer information for such purposes as BCXPay sees fit in respect of any account or transaction which the Client has with BCXPay, to and between:

1. the branches, subsidiaries, representative offices, affiliates and associated or related corporations of BCXPay, data centres acting for BCXPay, contractors, agents and third-party service providers of BCXPay and their respective officers, servants, agents, wherever situated;
2. any person who has agreed to provide or is providing security to BCXPay for all or any moneys and/or liabilities owing or payable by the Client to BCXPay from time to time;
3. any trade repository, clearing houses, stock exchanges and regulatory authorities, including governmental authorities and statutory authorities such as FINTRAC; and
4. any other person to whom BCXPay considers such disclosure to be necessary or expedient for BCXPay to observe and perform its obligations under the Agreement and/or the FX Transactions or IBAN services; and
5. any credit bureau for the purposes of the assessment of the Client’s creditworthiness.

16.3 Sharing

BCXPay may from time to time be required to share the Client’s confidential information with certain third parties (whether in Canada or elsewhere) for the purposes of proper and effective operation of the Account and provision of products and services to the Client, for the purposes of implementation of credit control or risk management policies of BCXPay Group, and/or for the purposes for complying with and/or enabling any affiliated or related company in the BCXPay Group to comply with any foreign or local laws, regulations, notifications, directives, guidelines or guidance given or issued by or in agreement with any legal, regulatory, governmental, tax, law enforcement or other authorities, exchanges, or self-regulatory or industry bodies or associations of financial services providers, within or outside Canada, existing currently and in the future. For these purposes, and without prejudice to any other provisions in this Clause 16, the Client irrevocably and unconditionally authorises BCXPay to disclose such confidential information to the following entities, whether in Canada or elsewhere:

1. other entities within the BCXPay Group;
2. any BCXPay Group’s professional advisor (including any legal advisor or auditor), rating agency, insurer, insurance broker, direct or indirect provider of credit protection, or third-party provider of services, (such as operational, administrative, data processing, back office support, payment or securities clearing, telecommunications, computer and technological service providers); and
3. as required by any Applicable Law, regulation or contractual commitment, regulatory and other authorities (including government, quasi-government, administrative, regulatory or supervisory body or authority or court or tribunal having jurisdiction over any entity within the BCXPay Group).

This Clause 16 shall survive the termination of the Agreement.

17. DATA PROTECTION

17.1

The Client may from time to time be requested by BCXPay to supply personal data (as defined under Applicable Data Protection Law, including the Personal Information Protection and Electronic Documents Act (PIPEDA)) relating to the Client. For the purposes of this Clause 17, personal data means personal data relating to any individual director, shareholder, officer, manager or employee, which has been provided to BCXPay.

17.2

The Client understands and accepts that BCXPay may provide personal data received from the Client to the following persons (whether within or outside of Canada) for the purposes set out in Clause 17.3:

1. any member or affiliated or related company in the BCXPay Group including but not limited to BCXPay’s parent and/or subsidiary companies;
2. any contractor, agent or third-party service provider which provides administrative, background checking, data processing, financial, computer, telecommunication, payment or securities clearing, professional or other services to BCXPay in connection with the operation of its business;
3. credit reference agencies, and, in the event of default, to debt collection agencies;
4. any person with whom BCXPay enters into or proposes to enter into a transaction with on the Client’s behalf, or persons representing the same;
5. any foreign or local exchanges of financial products where the Client’s orders to buy or sell such financial products are placed or transacted; or their associated clearing houses or operators;
6. any assignee, transferee, participant, sub-participant, delegate, successor or person to whom the Agreement is novated; and
7. any foreign or local governmental, regulatory, supervisory, tax, law enforcement or other authorities, bodies or institutions, including FINTRAC.

17.3

The Client understands and accepts that the purposes for which the personal data provided by the Client from time to time may be used are:

1. executing or giving effect to the Client’s orders relating to transactions or otherwise, and carrying out the Client’s other Instructions;
2. conducting credit inquiries or background checks on the Client and ascertaining the Client’s financial situation and investment objectives;
3. collecting of amounts due, enforcing of security, charges or other rights and interests in favour of BCXPay or any member of BCXPay Group;
4. complying with and/or enabling any affiliated or related company in the BCXPay Group to comply with any foreign or local laws, regulations (including FATCA, Automatic Exchange Of Financial Account Information, Common Reporting Standards and similar regulations), notifications, directives, guidelines or guidance given or issued by or in agreement with any legal, regulatory, governmental, tax, law enforcement or other authorities, exchanges, or self-regulatory or industry bodies or associations of financial services providers, within or outside Canada, existing currently and in the future;
5. complying with obligations, requirements, policies, procedures, measures and arrangements for sharing personal data and information within the BCXPay Group and/or any other use of personal data in accordance with any BCXPay Group wide programmes for compliance with sanctions or prevention or detection of money laundering, terrorist financing or other unlawful activities; and
6. other purposes related or incidental to any one or more of the above.

17.4

BCXPay may from time to time transfer the personal data of the Client outside Canada to any of the persons referred to in Clause 17.2 above and for any of the purposes referred to in Clause 17.3 above, in compliance with PIPEDA and other Applicable Data Protection Laws.

18. AEOI COMPLIANCE

18.1 Disclosure, Consent and Waiver

The Client shall provide to BCXPay, BCXPay Group, their agents or service providers, upon request, any documentation or other information regarding the Client and its beneficial owners that BCXPay, BCXPay Group, their agents or service providers may require from time to time in connection with their obligations under, and compliance with, Applicable Law and regulations including, but not limited to, AEOI. The Client hereby agrees and consents that BCXPay, BCXPay Group and their agents and service providers may collect, store and process information obtained from the Client or otherwise in connection with the Agreement and/or the Client’s transactions for the purposes of complying with AEOI and/or other Applicable Law, including disclosures between BCXPay and any of them and to the governmental authorities of the United States of America, Canada and/or other jurisdictions. To the extent permitted by law, Client hereby waives any provision of any data protection, privacy, banking secrecy or other law or regulation of any jurisdiction and/or the terms of any confidentiality agreement, arrangement or understanding that would otherwise prevent compliance by BCXPay, BCXPay Group and their agents and service providers with AEOI and/or other Applicable Law. The Client acknowledges that this may include transfers of information to jurisdictions which do not have strict data protection, data privacy laws or banking secrecy laws. The Client shall ensure that, before the Client or anyone on its behalf discloses information relating to any third party to BCXPay, BCXPay Group or their agents or service providers in connection with the Agreement or the Client’s transactions that third party has been provided with such information and has given such consents or waivers as are necessary to allow BCXPay, BCXPay Group and their agents and service providers to collect, store, process and disclose his, her or its information as described in this Clause.

18.2 Provision of Information

1. The Client shall upon request by BCXPay confirm to BCXPay (i) whether the Client is a person who is entitled to receive payments free from any deduction or withholding as required by AEOI (the “AEOI Exempt Party”); and (ii) supply to BCXPay such forms, documentation and other information relating to the Client’s status under AEOI (including its applicable passthrough rate or other information required under the US Treasury Regulations or other official guidance including intergovernmental agreements) as BCXPay reasonably requests for the purposes of that BCXPay’s compliance with AEOI (and the compliance of any of BCXPay Group).
2. If the Client confirms to BCXPay pursuant to the above that the Client is an AEOI Exempt Party and the Client subsequently becomes aware that the Client is not, or has ceased to be an AEOI Exempt Party, the Client shall notify BCXPay as soon as reasonably practicable.
3. If the Client fails to confirm its status or to supply forms, documentation or other information requested in accordance with paragraph (i) above (including, for avoidance of doubt, where paragraph (ii) above applies), then:
   1. If the Client failed to confirm whether the Client is (and/or remains) an AEOI Exempt Party, then the Client will be treated as if the Client is not an AEOI Exempt Party; and
   2. If the Client failed to confirm its applicable passthrough rate then the Client will be treated as if its applicable passthrough rate is 100%, until such time as the Client provides BCXPay the requested confirmation, forms, documentation or other information.

19. CLIENT IDENTITY DISCLOSURES

19.1

Without affecting any other provisions of the Agreement, in connection with any lawful request for information made to BCXPay by FINTRAC, the Exchange, or other regulators, exchanges or depositories in Canada or elsewhere in respect of any transaction relating to the Account:

1. the Client shall, within two (2) Business Days upon request by BCXPay, provide BCXPay, FINTRAC, the Exchange, or other regulators, exchanges or depositories with such information as may be required by them, including but not limited to the identity, address, occupation, contact details and other identification particulars of (i) the party on whose account the transaction was effected (so far as known to the Client); (ii) the person who has the ultimate beneficial interest in the transaction; and (iii) any third party who originated the transaction;
2. if the Client effected the transaction for a collective investment scheme, discretionary account or discretionary trust, the Client shall within two (2) Business Days, upon request by BCXPay, inform BCXPay, FINTRAC and/or the Exchange or other regulators of the identity, address and contact details of the scheme, account or trust and, if applicable, the identity, address, occupation and contact details of the person who, on behalf of the scheme, account or trust, instructed the Client to effect the transaction. The Client shall inform BCXPay within twenty-four (24) hours after the Client’s discretion to invest on behalf of any scheme, trust or account has been overridden. In such event, the Client shall also inform BCXPay, FINTRAC and/or the Exchange or other regulators within two (2) Business Days upon request by BCXPay, of the identity, address, occupation and contact details of the person(s) who has or have given the Instruction in relation to the transaction; and
3. if the Client is aware that the Client’s client is acting as intermediary for its underlying client(s), and the Client does not know the identity, address, occupation and contact details of the underlying client for whom the transaction was effected, the Client confirms that:
   1. the Client has arrangements in place with the Client’s client which entitle the Client to obtain the information set out in paragraphs (i) and/or (ii) above from the Client’s client immediately upon request or procure that it be so obtained; and
   2. the Client shall, upon request from BCXPay in relation to an FX Transaction or IBAN service under each Account, promptly request the information set out in paragraphs (i) and/or (ii) above from the Client’s client on whose Instructions the FX Transaction or IBAN service was effected such that the information is provided to BCXPay, FINTRAC, the Exchange, or other regulators, exchanges or depositories within two (2) Business Days from the date of the request.

19.2

Without affecting any other provisions of the Agreement, in respect of any transaction relating to the Account, the Client shall, within two (2) Business Days, upon request by BCXPay, FINTRAC, the Exchange or other regulators, provide BCXPay, FINTRAC, the Exchange, or other regulators with such information as may be required by it including but not limited to the identity, address, occupation, contact details and other identification particulars of (i) the party on whose account the transaction was effected (so far as known to the Client); (ii) the person who has the ultimate beneficial interest in the transaction; and (iii) any third party who originated the transaction. In addition, the Client hereby authorises BCXPay to provide the requested information to FINTRAC, the Exchange or other regulator(s) according to the request, where BCXPay already has such information.

19.3

The Client confirms that neither the Client nor the Client’s clients are subject to any law which prohibits the performance by the Client of this Clause 19 or, if the Client or the Client’s clients are subject to such law, that the Client or the Client’s clients, as may be the case, have waived the benefit of such law or consent in writing to the performance by the Client of these Clauses.

19.4

This Clause 19 shall continue in effect notwithstanding the termination of the Account or the Agreement.

20. ELECTRONIC TRADING SERVICE

20.1 Electronic Trading Service

The Client understands that the Electronic Trading Service is a semi-automated facility, which enables the Client to send electronic Instructions and receive information and services, including for IBAN account management. The Client agrees to use the ETS only in accordance with the terms of the Agreement.

20.2 Authorised Access

The Client shall be the only authorised user of the ETS for each Account. The Client shall be responsible for the confidentiality and use of the Access Codes. The Client acknowledges and agrees that the Client shall be solely responsible for all Instructions entered through the ETS using the Access Codes and neither BCXPay nor BCXPay’s directors, officers or employees shall have any liability to the Client, or to any other person whose claim may arise through the Client, for any claims with respect to the handling, mishandling or loss of any Instruction.

20.3 Proprietary System

The Client acknowledges that the ETS is proprietary to BCXPay. The Client warrants and undertakes that the Client shall not, and shall not attempt to, tamper with, modify, de-compile, reverse engineer or otherwise alter in any way, and shall not attempt to gain unauthorised access to, any part of the ETS. The Client acknowledges that BCXPay may take legal action against the Client, if the Client at any time breaches this warranty and undertaking or if BCXPay at any time suspects that the Client has breached the same. The Client undertakes to notify BCXPay immediately if the Client becomes aware that any of the actions described above in this paragraph is being perpetrated by any other person.

20.4 Responsibility to Notify Errors

The Client further acknowledges and agrees that, as a condition of using the ETS to give Instructions, the Client shall immediately notify BCXPay if:

1. an Instruction in respect of the Account has been placed through the ETS and the Client has not received an order number;
2. an Instruction in respect of the Account has been placed through the ETS and the Client has not received an accurate acknowledgement of the Instruction or of its execution, whether by hard copy or via electronic or verbal means;
3. the Client has received acknowledgement, whether by hard copy, electronic or verbal means, of a transaction which the Client did not originate or instruct; and/or
4. the Client become aware of any unauthorised use of the Account Number and/or password.

20.5 Alternative Trading Facilities

The Client agrees that, if the Client experiences any problem in reaching BCXPay through the ETS or vice versa, the Client shall attempt to use an alternative method or device, as BCXPay may make available, to communicate with BCXPay to place the Client orders and to inform BCXPay of the problem the Client may be experiencing. The Client acknowledges that BCXPay gives no express or implied warranties (including but not limited to warranties of merchantability, functionality or fitness for a particular use) with respect to trade or trade related services. The Client agrees that BCXPay shall not be responsible to the Client for any losses, costs, expenses, damages or claims which the Client may suffer as a result of any disruption, malfunction or other suspension of BCXPay’s service beyond BCXPay’s control.

20.6 Third Party Market Data

The Client understands that the ETS may provide, for informational purposes only, data published by third parties. Owing to market volatility and possible delay in the data-transmission process, the data may not be real-time market information for the relevant currencies. The Client understands that, whilst BCXPay believes such data to be reliable, it has no independent basis to verify or contradict the accuracy or completeness of the information provided. The Client understands that no recommendation or endorsement from BCXPay shall be inferred from the data provided with respect to any currencies.

20.7 No Guarantee of Accuracy or Timeliness of Information

1. The Client acknowledges that the price quote service available at the ETS is provided by a third party provider appointed by BCXPay from time to time. The Client understands that information provided in the ETS is on an “as is”, “as available” basis and BCXPay does not guarantee the timeliness, sequence, accuracy, adequacy or completeness of such information.
2. The Client hereby confirms that, due to unpredictable traffic congestion and for other reasons, the ETS may not be a reliable medium of communication and that such unreliability is beyond the control of BCXPay. This may give rise to delays in transmission and receipt of the Client’s Instructions or other information, delays in execution or execution of the Client’s Instructions at prices different from those prevailing at the time the Client’s Instructions were given, misunderstanding and errors in any communication between the Client and BCXPay and other adverse situations. Whilst BCXPay will take every possible step to safeguard its systems, client information, accounts and assets held for the benefit of BCXPay’s clients, the Client accepts the risk of conducting financial and other transactions via the ETS.

20.8 Termination or modification of Electronic Trading Service

BCXPay reserves the right to terminate the Client’s access to the ETS or any portion of it or modify the ETS in its sole discretion, without notice and without limitation, for any reason whatsoever. In the event of such termination or modification, BCXPay and its network/information providers shall have no liability to the Client.

21. ELECTRONIC INSTRUCTIONS INDEMNITY

21.1 Electronic Instructions

The Client acknowledges that, from time to time, BCXPay needs to act on fax or electronic Instructions (including but not limited to email or short message services (SMS)) from the Client. The Client understands that electronic Instructions are not secure means of communication and there are risks involved. The Client hereby requests BCXPay to accept such electronic Instructions for the Client’s convenience. BCXPay is hereby authorised to act on any electronic Instructions that BCXPay in BCXPay’s sole discretion believes to have emanated from the Client. Provided that BCXPay exercises reasonable care in verifying the identity of the person giving the electronic Instructions, BCXPay shall not be liable for acting in good faith on facsimile or electronic Instructions that emanate from any unauthorised person.

21.2 Binding Transaction and Indemnity

Any FX Transaction or IBAN service entered into between BCXPay and the Client pursuant to a facsimile or electronic Instruction acted upon in good faith and shall be binding upon the Client whether made with or without the Client’s authority, knowledge or consent. The Client undertakes to indemnify BCXPay and keep BCXPay indemnified at all times against all actions, proceedings, claims, losses, damages, costs and expenses which may be brought against BCXPay or suffered or incurred by BCXPay and which shall have arisen either directly or indirectly out of or in connection with BCXPay’s accepting facsimile or electronic Instructions and acting thereon, whether or not the same are confirmed in writing by the Client.

22. FEES AND EXPENSES

22.1 Service Fees

1. All services, including IBAN account maintenance, payments, and FX Transactions, will be charged in accordance with BCXPay’s then prevailing rate for the relevant service as notified by BCXPay to the Client from time to time. The basis for such prevailing rate for the relevant notice shall be as notified by BCXPay to the Client from time to time. The Client shall pay such fees promptly in the manner notified by BCXPay.
2. Without prejudice to any other provisions of this Agreement, the Client shall pay such brokerage, commission and charges (including, without limitation, markups and markdowns, statement charges, idle account charges, order cancellation charges, account transfer charges or other charges), fees (including, without limitation, fees imposed by any interbank agency, bank, contract markets or other regulatory or self-regulatory organizations) arising out of BCXPay providing services hereunder. All such charges shall be paid by the Client as they are incurred, or as BCXPay in its sole and absolute discretion, may determine, and the Client hereby unconditionally and irrevocably authorises BCXPay to withdraw the amount of any such charges from the Account.

22.2 Indemnity

1. The Client will indemnify each of BCXPay and BCXPay’s directors, officers, employees and agents (each of these persons and entities, together with BCXPay, the “Indemnifiable Persons”) (on a full indemnity basis) against all out-of-pocket expenses, including legal fees, execution fees, stamp fees, filing fees, registration fees, charges incurred for documentation or similar tax, incurred by such Indemnifiable Person, directly or indirectly, in relation to the enforcement or protection of the rights of such Indemnifiable Person under the Agreement or by reason of the early termination of any FX Transaction or IBAN service, including costs of collection.
2. The Client also unconditionally and irrevocably undertakes to keep each Indemnifiable Person fully indemnified from and against all liabilities, claims, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses and disbursements of any kind whatsoever, legal or otherwise, on a full indemnity basis, which any Indemnifiable Person may at any time and from time to time sustain, suffer or incur under, in connection with or arising out of the Agreement.

22.3 Survival

Clause 22 (Fees and Expenses) of this Agreement shall survive the termination of the Agreement.

23. COMMUNICATION

23.1 To the Client

Any notice or other form of communication to the Client in respect of the Agreement may be given in any manner described below to the addresses or numbers provided by the Client and will be deemed effective as indicated:

1. if in writing and delivered in person or by courier, on the date it is delivered;
2. if sent by mail (airmail if overseas), on the date it is delivered or date on which its delivery is attempted;
3. if sent by e-mail or other electronic messaging system, on the date it is delivered; or
4. if by telephone or other oral communication, on the date the communication occurred, provided that it is confirmed by at least one of the methods specified in (i) to (iii) above.

23.2 To BCXPay

Any notice or other form of communication to BCXPay must be given in writing, delivered to the address specified by BCXPay or sent by fax to the number specified by BCXPay, by telephone on the number specified by BCXPay, or by another means specified by BCXPay, and is not effective until actually received by BCXPay.

24. MISCELLANEOUS

24.1 Termination

1. BCXPay may terminate the Agreement at any time provided a written notice is given to the Client fifteen (15) days in advance. The Client understands, upon the receipt of such notice, that the Client’s Accounts shall be restricted to the closing of transactions only (i.e. the liquidation of existing FX Transactions or IBAN positions). However, BCXPay may terminate the Agreement forthwith at any time without notice to the Client if the Client breaches or fails to comply with any term of the Agreement.
2. Any termination of the Agreement is conditional on the satisfaction of any outstanding Liabilities, indebtedness and/or obligations in the Client’s Accounts, including but not limited to any debit balance, executed and yet unpaid purchases and shall not affect any transaction already entered into, or prejudice or affect any right, power, duty and obligation of either Party accrued, prior to such termination.

24.2 Transfer

1. Neither the Agreement, any interest or obligation under the Agreement nor the Account may be assigned, transferred or encumbered by the Client (whether by way of security or otherwise) without BCXPay’s prior written consent.
2. BCXPay may, without giving any prior notice, (i) make a transfer of all or any part of the Agreement (a) to any of BCXPay’s Affiliates or associated companies, wherever situated, or (b) pursuant to a consolidation or amalgamation with, or merger with or into, or transfer of all or substantially all of BCXPay’s assets to, another entity; and (ii) make a transfer of all or any part of BCXPay’s interest in any amount (if any) payable to BCXPay under Clause 10.2 (Payments on Early Termination).
3. Any purported transfer that is not in compliance with this Clause 24.2 shall be void.

24.3 Severability

If any provision of the Agreement shall be held to be invalid or unenforceable by any court or regulatory agency or body, such invalidity or unenforceability shall attach only to such provision. The validity of the remaining provisions shall not be affected thereby and the Agreement shall be carried out as if any such invalid or unenforceable provision were not contained herein. Time shall be of the essence in relation to all matters arising under the Agreement. Where the Clients consist of more than one person, the liability of each of the Clients shall be joint and several and references to the Client shall be construed, as the context requires, to any or each of the Clients. BCXPay shall be entitled to deal separately with any of the Clients including the discharge of any liabilities to any extent without affecting the liability of the others.

24.4 Records Conclusive

BCXPay’s records (in any form) are conclusive and binding on the Client in relation to the matters or facts therein stated, except for manifest error. The Client agrees that they will be admissible in any court or tribunal, or in any actions, proceedings or disputes between BCXPay and the Client, as evidence of the facts and matters recorded in them.

24.5 Determinations Conclusive

All opinions, determinations, certificates, calculations, quotations and decisions given, expressed, made or obtained by BCXPay as to a matter, rate or an amount due from the Client will (in the absence of gross negligence or wilful default) be conclusive and binding on the Client.

24.6 Presumption of Authorization

Every transaction indicated or referred to in any notice, statement, confirmation or other communication and every statement of Account shall be deemed and treated as authorised and correct and as ratified and confirmed by the Client unless BCXPay shall receive from the Client written notice to the contrary within five (5) days after the date after such notice, statement, confirmation or other communication is deemed to have been received by the Client.

24.7 Duty to Notify

The Client shall inform BCXPay within two (2) Business Days of the possession or knowledge of information, if the Client acts as intermediary for or effected a transaction on behalf of someone other than the Client as an ultimate beneficiary owner(s). If the Client notices any discrepancies and/or error with regard to and in connection with any the Client’s Account information, transactions, settlements and fund transfers. The Client agrees that the Client’s failure to notify of such discrepancy and/or error in a prompt manner (no later than seven (7) calendar days) would exonerate BCXPay and BCXPay’s agents from any claims, liabilities or damages resulting from those discrepancies and/or errors.

24.8 Amendment

To the extent permitted by law, BCXPay may from time to time amend, revise, modify or supplement any of the terms and conditions of this Agreement by notifying the Client and such amendments shall come into effect immediately upon the Client deemed receipt of BCXPay’s notice. The Client acknowledges and agrees that if the Client does not accept any amendments (including amendments to BCXPay’s commission rates and fees) as notified by BCXPay from time to time, the Client shall have the right to terminate this Agreement in accordance with termination clause under this Agreement. The Client further agrees that any amendments shall be deemed to be accepted by the Client, should BCXPay continue to effectuate transaction(s) in the Client’s Account without expressively communicating the Client objections to such amendments prior to the transaction(s).

24.9 Material Change

BCXPay will notify the Client of material changes to any information provided to the Client, which may affect BCXPay’s name, address, licensing status or registration number with FINTRAC or the service(s) provided to the Client under this Agreement (including remuneration (and the basis for payment) to be paid by the Client to BCXPay and Margin facilities (including interest charges, Margin calls and circumstances under which the Client’s positions may be closed without the Client’s consent).

24.10 Waiver

Waiver of any right under this Agreement must be in writing signed by the party waiving such right. BCXPay will not be regarded as having waived any right under this Agreement if BCXPay fails or delays in exercising such right. Any single or partial exercise of any rights under this Agreement will not preclude any further exercise of such right or exercise of any other right. BCXPay’s failure to insist at any time on strict compliance with any of the terms or conditions of this Agreement or any continued course of such conduct on BCXPay’s part shall, in no event, constitute or be considered as a waiver by BCXPay of any of BCXPay’s powers, rights, remedies or privileges.

24.11 Limits

BCXPay may set limits on the size/value of the contracts or payments that the Client may establish with BCXPay without having to seek the Client’s prior written consent. BCXPay will notify the Client of these limits and any change to these limits in writing.

24.12 BCXPay’s liability

BCXPay is not liable for any failure or delay in executing any of the Client’s Instructions caused by any event beyond BCXPay’s control.

24.13 Instructions

1. BCXPay is authorised (but not obliged) to act on any Instruction which BCXPay believes in good faith to have been given by or on behalf of the Client, whether or not the Instruction was actually authorised, whether or not any signature was forged, and regardless of the amounts involved. BCXPay shall not be obliged to conduct any due diligence to verify that these Instructions are authorised and/or signatures have not been forged. The Client shall be responsible for ensuring that all Instructions given to BCXPay have been duly authorised and have not been forged.
2. BCXPay shall not be bound to act on any Instructions when there is insufficient funds in any of the Client’s Account with BCXPay or if any applicable transaction limit is exceeded or if BCXPay is prevented by law or any attachment or court order or restraint or has other lawful reason from complying with any Instructions given or purported to be given by the Client or the Client’s authorised dealers and/or signatories or where such communication or Instructions are vague, unclear or incomplete. BCXPay shall not be liable for or in respect of such Instructions carried out or acted upon by BCXPay arising from or connected with any error or misunderstanding or lack of clarity in the terms of such Instructions.
3. The Client undertakes to indemnify BCXPay (on a full indemnity basis) and to keep BCXPay indemnified against all demands, claims, liabilities, losses, actions, proceedings, damages, costs and expenses incurred or sustained by BCXPay of whatever nature and howsoever arising, out of or in connection with any such Instructions or the acting upon or carrying out of any such Instructions or the taking of steps in connection with or in reliance upon any such Instructions, and the Client shall reimburse BCXPay any sums on demand.

24.14 Conflicts of Interests

1. Subject to Applicable Laws, BCXPay shall be entitled to:
   1. act in any capacity for any other person or buy, sell, hold or deal in any foreign currencies for BCXPay’s own account even if similar transactions may be in the Client’s Account or covered by the Instruction in respect of the Client’s Account; and
   2. take the opposite position to the Client’s order whether it is on BCXPay’s own account or is on behalf of other clients of BCXPay.
2. BCXPay shall not be liable to the Client for or obligated to disclose to the Client, any commission, profits or other benefits whatsoever resulting from BCXPay’s carrying out any of the above actions or entering into any of the above transactions.
3. Subject to Applicable Law, rules and regulations and compliance with BCXPay’s internal policies and procedures, BCXPay’s employees are permitted to buy, sell, hold or deal in any contracts for his/her own account.
4. The Client acknowledges and agrees that BCXPay may solicit, accept and retain for its own benefit any rebate, brokerage, commission, fee, discount and/or other benefit or advantage from any transaction effected by BCXPay. BCXPay will disclose such benefit or advantage to the Client upon request or otherwise in accordance with Applicable Law, regulations and rules. BCXPay may also offer at its discretion any benefit or advantage to any person in connection with such transaction.

24.15 Entire Agreement

The Agreement constitutes the entire agreement and understanding of the Parties with respect to its subject matter and supersedes all oral communication and prior writings with respect thereto. Nothing within this Clause is deemed to waive any rights BCXPay may have against the Client for any liability for fraud or misrepresentation. No amendments, modification or waiver in respect of the Agreement will be effective unless in writing (including a writing evidenced by a facsimile transmission) and executed by each of the Parties or carried out in accordance with Clause 24.8 (Amendment) above.

24.16 Remedies Cumulative

Except as provided in the Agreement, the rights and remedies provided in the Agreement are cumulative and not exclusive of any rights and remedies provided by law.

24.17 No Waiver

A failure or delay in exercising any right, power or privilege in respect of the Agreement will not operate as a waiver, and a single or partial exercise of any right, power or privilege will not preclude any further exercise of that right, power or privilege or the exercise of any other right, power or privilege.

24.18 Waiver of Immunities

The Client irrevocably waives, where relevant and to the extent permitted by Applicable Law, with respect to itself and its revenues and assets (irrespective of their use or intended use), all immunity on the grounds of sovereignty or other similar grounds from (i) suit, (ii) jurisdiction of any court, (iii) relief by way of injunction or order for specific performance or recovery of property, (iv) attachment of its assets (whether before or after judgment) and (v) execution or enforcement of any judgment to which it or its revenues or assets might otherwise be entitled in any proceedings in the courts of any jurisdiction and irrevocably agrees, to the extent permitted by Applicable Law, that it will not claim any such immunity in any proceedings.

24.19 Curtailment or Restriction on BCXPay

The Client acknowledges that the Client may be affected by any curtailment of, or restriction on, the capacity of BCXPay to trade in respect of open positions as a result of action taken by FINTRAC or other regulators under applicable rules and regulations or for any other reason, and that in such circumstances, the Client may be required to reduce or close out his/its positions with BCXPay.

24.20 Governing Law

The Agreement is governed by the laws of the Province of British Columbia and the federal laws of Canada applicable therein. Subject to Applicable Law, the Client submits to the exclusive jurisdiction of the courts of British Columbia and irrevocably waives any objection which the Client may now or in the future have to the courts of British Columbia as a venue for any proceeding in connection with the Agreement and any claim which the Client may now or in the future be able to make that any proceeding has been instituted in an inappropriate forum.

24.21 Rights of Third Parties

A person who is not a Party to the Agreement has no right to enforce any term of the Agreement.

ANNEX 1 RISK DISCLOSURE

General

The following risk disclosure statements cannot disclose all the risks and other significant aspects involved. The intention is to inform the Client that the risk of loss may be substantial in certain circumstances. In light of the risks, the Client should invest or trade only if it understands the nature of the contracts (and contractual relationships) it is entering into and the extent of its exposure to risk. The Client should carefully consider whether the FX Transaction or IBAN service is suitable for it in light of its experience, financial position, resources, objectives and other circumstances. The Client should undertake its own research and study before it invests or trades. The Client is advised to seek independent financial and professional advice before it invests or trades. The Client should seek independent professional advice if it is uncertain of or has not understood any aspect of these risk disclosure statements or the nature and risks involved in investment or trading.

1. The FX Transactions and IBAN services are “non-transferable” and it may be impossible for the Client to close out or liquidate them.
2. Any recommendation, suggestion or information given by BCXPay to the Client is for the Client’s reference only. Reliance on such recommendation, suggestion or information is at the Client’s own risk. BCXPay makes no representations regarding the performance of the Client’s investment.
3. The Client confirms to BCXPay that it has sufficient knowledge and experience to be able to evaluate the merits and risks of entering into each FX Transaction or IBAN service, that it is acting in reliance solely upon its own judgment or upon professional advice obtained independently of BCXPay as to those merits and risks (including, where relevant, the tax and accounting treatment of each FX Transaction or IBAN service) and is not relying upon BCXPay’s views or advice.
4. Rates may fluctuate rapidly. No indication or quotation of any rate binds BCXPay until the Client has “accepted” it and BCXPay has thereafter re-confirmed it.
5. Past performance is not indicative of future performance. The offering documents or information provided by BCXPay and/or its affiliates have not been reviewed by FINTRAC and/or other relevant regulatory authorities and investors are advised to exercise caution in relation to the offer.

2. Commission and other charges

Before the Client begins to trade or use IBAN services, it should obtain a clear explanation of all commission, fees and other charges for which it will be liable. These charges will affect its net profit (if any) or increase its loss.

3. Currency risks

The profit or loss in FX Transactions in foreign currency-denominated contracts (whether they are traded in the Client’s own or another jurisdiction) will be affected by fluctuations in currency rates where there is a need to convert from the Currency denomination of the contract to another Currency. For IBAN accounts, cross-border payments may involve additional currency conversion risks.

4. Risks relating to Historic Rate Rollover

Historic rate FX transactions may be used to conceal losses or to perpetuate fraud as losses are not usually realised unless a transaction is settled or closed-out by BCXPay.

5. Risks relating to Exchange Rate Volatility

Substantial losses may be sustained on the contract, trade, product or financial investment if the market conditions move against the Client’s position. Market movements may have an impact on the extent of profit/loss the Client would be exposed to when there is an upward or downward movement in the relevant rates, and the extent of loss if the Client has to liquidate a position should market conditions move against such Client. The Client’s position may be liquidated at a loss and the Client will also be liable for any resulting deficit in his/its account with BCXPay.

6. Liquidity Risks

It may be difficult or impossible to liquidate or trade in an FX transaction or process payments via IBAN, to assess a fair price or assess risk exposure. This can happen, for example, where the market for a transaction is illiquid or where there is a failure in electronic or telecommunications systems, and where there is the occurrence of an event commonly known as “force majeure”. Placing contingent orders, such as “stop-loss” or “stop-limit” orders, will not necessarily limit the Client’s losses to the intended amounts, as it may be impossible to execute such orders under certain market conditions.

7. Off-exchange FX Transactions

In some jurisdictions, there may be restricted circumstances in which firms are permitted to effect off-exchange FX Transactions. Off-exchange FX Transactions have higher counterparty default risk than the exchange-traded FX Transactions. The firm with which the Client deals may be acting as the Client’s counterparty to the off-exchange FX Transaction. It may be difficult or impossible to liquidate an existing position, to assess the value, to determine a fair price or to assess the exposure to risk. For these reasons, these off-exchange FX Transactions may involve increased risks. Off-exchange FX Transactions may be less regulated or subject to a separate regulatory regime. Before the Client undertakes such off-exchange FX Transactions, it should familiarise itself with applicable rules and attendant risks.

8. Trading Facilities

Electronic trading facilities are supported by computer-based component systems for the order-routing, execution, matching, registration or clearing of trades and payments. As with all facilities and systems, they are vulnerable to temporary disruption or failure. The Client’s ability to recover certain losses may be subject to limits on liability imposed by the system provider, the market, the clearing house and/or participant firms. Such limits may vary: the Client should ask BCXPay for details in this respect.

9. Risk of Trading in FX Transactions

The risk of loss in FX trading can be substantial. The Client acknowledges and agrees that he/it may sustain losses in excess of his/its initial margin funds. Placing contingent orders, such as “stop-loss” or “stop-limit” orders, will not necessarily limit losses to the intended amounts. Market conditions may make it impossible to execute such orders. The Client acknowledges and agrees that he/it may be called upon at short notice to deposit additional margin funds. If the required funds are not provided within the prescribed time, his/its position may be liquidated. The Client will remain liable for any resulting deficit in his/its account. The Client should therefore carefully consider whether such trading is suitable in light of his/its own financial position and investment objectives.

10. Risk of Margin Trading

The risk of loss in financing a transaction by deposit of collateral is significant. The Client acknowledges and agrees that he/it may sustain losses in excess of his/its cash and any other assets deposited as collateral with the licensed or registered person. Market conditions may make it impossible to execute contingent orders, such as “stop-loss” or “stop-limit” orders. The Client may be called upon at short notice to make additional margin deposits or interest payments. If the required margin deposits or interest payments are not made within the prescribed time, the Client’s collateral may be liquidated without his/its consent. Moreover, the Client will remain liable for any resulting deficit in his/its account and interest charged on his/its account. The Client should therefore carefully consider whether such a financing arrangement is suitable in light of his/its own financial position and investment objectives.

11. Risk of Electronic Trading

Trading on an electronic trading system may differ from trading on other electronic trading systems, and the Client will be exposed to risks associated with the system and/or the internet if the Client undertakes transactions on an electronic trading system and/or the internet. Access to the internet or other electronic devices may be limited or unavailable during periods of peak demand, market volatility, systems upgrades or maintenance or for other reasons. Transactions conducted through the internet or other electronic devices may be subject to interruption, transmission blackout, and delayed transmission due to unpredictable traffic congestion and other reasons beyond BCXPay’s control. The internet is, due to technical limitations, an inherently unreliable medium of communication. As a result of such unreliability and/or failures of hardware or software associated with electronic trading systems, there may be delays in the transmission and receipt of Instructions and other information and this may result in delays in the execution of Instructions, failure to execute orders according to Instructions (including execution at prices different from those prevailing prices at the time the Instructions were given) and/or Instructions not being executed at all. Moreover, communications and personal data may be accessed by unauthorised third party; and there are risks of misunderstanding or errors in any communication and such risks shall be absolutely borne by the Client. The Client acknowledges and agrees that it shall not usually be possible to cancel an Instruction after it has been given.

12. Risks of Assets received or held outside Canada

The Client acknowledges and agrees that the Client’s assets received or held by the licensed or registered person outside Canada are subject to the Applicable Law and regulations of the relevant overseas jurisdiction which may be different from Canadian laws and the rules made thereunder. Consequently, the Client’s assets may not enjoy the same protection as that conferred on the Client’s assets received or held in Canada.

13. Risk of providing authority to hold mail or to direct mail to third parties

If the Client provides BCXPay with an authority to hold mail or to direct mail to third parties, it is important for the Client to promptly collect in person all contract notes and statements of the Client’s Account and review them in detail to ensure that any anomalies or mistakes can be detected in a timely fashion.

14. Instructions Outside Canada

If the Client gives any Instruction to BCXPay outside Canada, the Client agrees to ensure and represent that such Instruction will have been given in compliance with any Applicable Law of the relevant jurisdiction from which the Client’s Instruction is given, and the Client further agrees that the Client shall, when in doubt, consult legal advisers and other professionals of the relevant jurisdiction. The Client accepts that there may be taxes or charges payable to relevant authorities in respect to any Instruction given outside Canada, and the Client agrees to pay such taxes or charges as applicable.

15. Credit risk of the issuer

If the issuer of the FX contracts becomes insolvent or defaults on its obligations, Client may not receive any maturity payout on the maturity date. The Client may only claim as an unsecured creditor of the issuer.

16. Credit risk of the Custodian Bank

All Client Amounts provided by the Client will be deposited into the custody account opened by BCXPay as trustee with the Custodian Bank. The Client is exposed to the credit risk of the Custodian Bank if it becomes insolvent and/or it is unable to repay its debt in full or otherwise. In the event that the Custodian Bank is unable to repay the Custody Amount to BCXPay in full, BCXPay shall not be liable to make any shortfall to the Client and shall not be liable for any loss, costs and expenses of the Client. The Client may only recover from the amount (if any) actually received by BCXPay from the Custodian Bank on a pro rata basis with all other Beneficiary Clients and such amount recovered may be substantially less than what the Client has provided to BCXPay in accordance with this Agreement and may be zero.

17. Limited maximum potential gain

The maximum potential gain is capped at the pre-determined exchange rate on the FX products.

18. Early Termination Risk

Early termination may not be permitted. Investor may suffer loss as a result of any early termination requested by the investor.

19. Settlement risk

A failure in settling an FX Transaction or IBAN payment may arise from counterparty default, operational problems, market liquidity constraints and other factors and, accordingly, parties to settlement of such normally assume full and unsecured risk with regard to counterparty exposure. If there is a failure to settle any FX Transaction or IBAN payment, this may have a material adverse impact on the value of such and you may lose some or all of your investment.

20. Not a time deposit

An FX Transaction or IBAN service is not equivalent to time deposit and does not represent any deposit of money. It is not protected under any deposit insurance scheme in Canada.

21. Acknowledgment of the Risks

The above risk disclosures have been explained by BCXPay’s representative to the Client and the Client understands and accepts the above stated risk disclosures.

22. Acceptance of BCXPay Inc.’s Account Terms and Conditions

By accepting BCXPay’s Terms and Conditions online, the account holder(s) has accepted electronically on behalf of the parties by their duly authorised representatives on the date which appears first on page 1.