The following General Terms & Conditions apply to all dealings and transactions between Counterparty and MG Falconer Precious Metals Limited (“MGF”). Counterparty and MGF agree to be bound by these General Terms & Conditions.
1. ARBITRATION. COUNTERPARTY AND MGF AGREE THAT ANY CONTROVERSY, CLAIM OR DISPUTE BETWEEN COUNTERPARTY AND MGF ARISING IN ANY WAY FROM ANY DEALING(S) OR TRANSACTION(S) BETWEEN COUNTERPARTY AND MGF OR FROM THESE GENERAL TERMS & CONDITIONS (COLLECTIVELY, A “DISPUTE”) SHALL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION PURSUANT TO THE ARBITRATION ORDINANCE OF HONG KONG AND THE RULES OF ARBITRATION OF THE INTERNATIONAL CHAMVER OF COMMERCE BY ONE ARBITRATOR APPOINTED IN ACCORDANCE WITH THE SAID RULES.THE ARBITRATION SHALL BE CONDUCTED IN ENGLISH AND TAKE PLACE IN HONG KONG. MGF DOES NOT CONSENT TO ANY CLASS ARBITRATION OR REPRESENTATIVE ARBITRATION PROCEEDING. COUNTERPARTY AND MGF WAIVE ANY RIGHT TO ARBITRATE ANY DISPUTE OR TO PURSUE RELIEF AGAINST THE OTHER IN A CLASS ARBITRATION OR OTHER REPRESENTATIVE PROCEEDING, AND AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN AN INDIVIDUAL CAPACITY. FURTHER, UNLESS MGF AND COUNTERPARTY AGREE OTHERWISE IN WRITING, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON’S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING. ANY DECISION RENDERED IN SUCH ARBITRATION IS BINDING ON EACH PARTY, AND JUDGMENT MAY BE ENTERED IN ANY COURT OF COMPETENT JURISDICTION. FEES AND EXPENSES OF THE ARBITRATOR AND ARBITRATION SHALL BE DIVIDED EQUALLY BETWEEN THE PARTIES. COUNTERPARTY AND MGF WILL EACH BE RESPONSIBLE FOR THEIR OWN ATTORNEYS’ FEES AND COSTS, AND THE ARBITRATOR HAS NO DISCRETION TO SHIFT ATTORNEYS’ FEES OR COSTS OF COUNTERPARTY TO MGF; PROVIDED, HOWEVER, THAT IN THE EVENT OF DEFAULT BY COUNTERPARTY UNDER A FORWARD TRANSACTION (AS DESCRIBED IN PAR. 12), COUNTERPARTY SHALL BE RESPONSIBLE FOR ALL LEGAL AND OTHER EXPENSES INCURRED BY MGF (INCLUDING BUT NOT LIMITED TO ATTORNEYS’ FEES AND COSTS AND ANY ARBITRATION FEES AND COSTS) AS A RESULT OF SUCH DEFAULT. IF COUNTERPARTY BRINGS AN ACTION AGAINST MGF IN ANY PROCEEDING OTHER THAN INDIVIDUAL ARBITRATION AS REQUIRED BY THESE GENERAL TERMS & CONDITIONS, OR UNSUCCESSFULLY CHALLENGES OR FAILS TO COMPLY WITH THE ARBITRATOR’S AWARD, COUNTERPARTY SHALL BE RESPONSIBLE FOR ALL LEGAL AND OTHER EXPENSES INCURRED BY MGF (INCLUDING BUT NOT LIMITED TO ATTORNEYS’ FEES AND COSTS) IN COMPELLING ARBITRATION, ENFORCING THIS ARBITRATION PROVISION OR DEFENDING OR ENFORCING THE ARBITRATION AWARD.
2. Counterparty is responsible and liable for insuring, delivering and shipping its precious metal- and gem/stone-bearing products (collectively, the “Material”) to MGF, and Customer will arrange for all shipments and delivery of the Material to premises in Hong Kong designated by MGF in writing and bear all shipping and delivery costs. Counterparty will obtain all necessary approvals, permits, export, transit and import licenses, other authorizations and other documents for shipping and delivering the Material to MGF in Hong Kong according to the laws, regulations, rules and guidelines of Hong Kong. MGF is not responsible for Material lost, destroyed, stolen, or damaged in transit.
3. Counterparty will provide a separate, written, completed MGF packing list with each submitted lot that includes a complete description of the contents and weights (gross, tare and net), clearly identifies the services requested (e.g., stone removal), and states the declared value of any gems/stones to be removed. MGF is not responsible for any loss or damage claimed if Counterparty fails to provide the required packing-list information.
4. Counterparty will ship and deliver Material to MGF in containers sufficiently secure to ensure the contents’ integrity during transit (double-boxed or metal container required if determined by MGF), and package and label Material as required by law. MGF assumes no responsibility for Material that arrives in unsecured, damaged, or unlabeled containers (“Defective Material”).
5. Counterparty will not ship or deliver to MGF any Material that is radioactive or hazardous or dangerous to human health or the environment (including but not limited to beryllium, mercury, thallium, cadmium, iron, lead, selenium, tellurium, zinc, antimony, sulphur, nickel, acrylonitrile, arsenic, asbestos, benzene, coke-oven emissions, ethylene oxide, isocyanides, silica, and vinyl chloride).
6. Right to Reject Material. MGF has the unconditional right and discretion to reject Counterparty’s Material (“Rejected Material”) at any time, for any or no reason whatsoever, and return it to Counterparty at Counterparty’s cost in its pre- or post-processed form, and have no further obligation or liability to Counterparty therefor.
7. Counterparty represents and warrants to MGF that: (a) Counterparty has good and marketable title to Material, full authority to sell and transfer Material, and Material is sold free of any liens, encumbrances, liabilities and adverse claims of any kind, and Counterparty will fully defend, protect, indemnify and hold MGF harmless from any adverse claim thereto; (b) Counterparty’s Material does not originate from, relate to, or further any illegal activity, nor does it originate from the Democratic Republic of the Congo or adjoining country; (c) transaction(s) initiated by Counterparty will not cause MGF to be in violation of any anti-money laundering, anti-terrorism or anti-bribery law of the U.S. or any foreign country; (d) Counterparty has previously complied with all applicable holding and reporting requirements and customs regulations, formalities, taxes and other charges relating to the Material according to the laws, regulation, rules and guidelines of Hong Kong or the applicable jurisdiction; (e) Counterparty has paid all applicable duties relating to Material originating outside Hong Kong or the applicable jurisdiction; (f) Counterparty has in place a written anti-money laundering and anti-terrorist financing program according to the AML/ATF Ordinances and the Guidelines for Precious Metals and Precious Stones Dealers issued by the Hong Kong Government to combat money laundering and terrorist financing (the “AML/ATF Guidelines”) or, if Counterparty is outside Hong Kong, according to the anti-money laundering and anti-terrorist financing laws, regulations, rules and guidelines of the applicable jurisdiction. If the applicable jurisdiction does not have such laws, regulations, rules or guidelines in place, Counterparty will have in place a written anti-money laundering and anti-terrorist financing program according to the AML/ATF Guidelines and the AML/ATF Ordinances; and (g) Counterparty is experienced in the precious metals industry.
8. The rights and obligations of MGF and Counterparty provided for in these General Terms & Conditions, whether sounding in contract, tort or otherwise, shall be governed and construed in accordance with the laws of Hong Kong, excluding that state’s choice-of-law principles.
9. INDEMNITY. AS A CONDITION OF DOING BUSINESS WITH MGF, COUNTERPARTY AGREES THAT IF COUNTERPARTY FAILS TO COMPLY WITH ANY OF ITS OBLIGATIONS, REPRESENTATIONS OR WARRANTIES HEREIN, COUNTERPARTY WILL INDEMNIFY, DEFEND AND HOLD MGF HARMLESS FROM ANY AND ALL INJURIES, COSTS, SUITS, AND EXPENSES, INCLUDING, BUT NOT LIMITED TO, ATTORNEYS’ FEES, EXPERT FEES, AND ALL COSTS OF DEFENSE OF SUCH CLAIMS, INCLUDING ALL LIABILITIES, CONSEQUENTIAL LOSSES, FINES, PENALTIES, JUDGMENTS, SETTLEMENTS, LOSSES, COSTS OF STORAGE/ HANDLING/ DISPOSAL/ DECONTAMINATION, PUNITIVE OR EXEMPLARY DAMAGES, STATUTORY DAMAGES AND CLAIMS BY ANY GOVERNMENT OR THEIR AGENCIES, THAT MGF MAY INCUR AS A RESULT OF SUCH FAILURE BY COUNTERPARTY. COUNTERPARTY ALSO AGREES TO INDEMNIFY AND HOLD MGF HARMLESS FROM ALL INJURIES, COSTS, SUITS AND EXPENSES ARISING OUT OF INJURIES TO PERSONS OR LOSS, DAMAGE OR DESTRUCTION OF PROPERTY, INCLUDING PROPERTY OR MATERIAL OF COUNTERPARTY, IN CONNECTION WITH OR TO HAVE ARISEN OUT OF TRANSACTIONS WITH MGF, REGARDLESS OF WHETHER CLAIMS OR ACTIONS ARE FOUNDED IN WHOLE OR IN PART UPON THE ALLEGED NEGLIGENCE (WHETHER SOLE, JOINT OR CONCURRENT), GROSS NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL FAULT OF MGF.
10. If MGF makes a typographical, mathematical or other error in its calculation of purchase-offer price or its payment to Counterparty for the Material, or if an MGF representative makes an unauthorized purchase offer (collectively, an “Error”), then Counterparty agrees to take all steps requested by MGF to rectify the Error(s) and to indemnify and hold MGF harmless from and against all damages or liability arising from such Error(s).
11. Notice of Counterparty Complaints. Counterparty must notify MGF in writing within 7 days after receipt of its statement or payment by MGF to Customer for purchasing the Material (whichever is sooner) of any Dispute, otherwise Counterparty has confirmed and agreed to all amounts and provisions in such statement or the payment (whichever is the case) and that it is forever barred from bringing a claim for loss, damage, or other relief relating to such Dispute.
12. Forward Transactions. Prior to entering into any forward transaction with MGF, Counterparty must pay a deposit to MGF in the amount of 10% (or other amount as determined in MGF’s sole discretion) of the total forward transaction. Counterparty’s agreement to sell Material to, or buy material from MGF at a predetermined or “locked-in” price (e.g., London PM or spot) constitutes a binding agreement, and if Counterparty fails to deliver such forward-sold Material to MGF within 5 days or deliver payment within 2 days (unless otherwise agreed in writing) after the lock-in date and timely thereafter consummate the transaction at the predetermined price, then Counterparty shall owe and pay to MGF the difference between the Material’s locked-in price and the current market price - occurring within 10 days after the lock-in date - as reasonably determined by MGF as an offsetting transaction; any market gains shall belong to and inure to the benefit of MGF. Counterparty grants to MGF a lien, security interest, and right of set off as security for these and any other liabilities and obligations of Counterparty to MGF upon all of Counterparty’s open accounts, pool accounts, and other Counterparty Materials in MGF’s possession, custody or control.
13. MGF may charge Counterparty a flat rate for shipping Material or other items to Counterparty. Counterparty acknowledges that MGF’s flat-rate shipping fee may exceed the actual fee charged by the company used for shipping.
14. MGF shall not be liable for any delay or non-performance caused, in whole or in part, by the occurrence of any contingency beyond the control of MGF, including but not limited to acts of war (whether declared or not), sabotage, terrorism, insurrection, civil disobedience, failure or delay in transportation, act of government, agency, or subdivision thereof, labor dispute, strike, accident, fire, flood, explosion, epidemic disease, acts of God, or shortage of materials.
15. These General Terms & Conditions supersede any prior agreements, terms, conditions, understandings and arrangements between MGF and Counterparty, and constitute the entire agreement and understanding between MGF and Counterparty concerning the subject matter hereof. There are no other agreements, representations, or warranties regarding this subject matter except those specifically set forth herein. These General Terms & Conditions may only be modified or amended by written instrument duly executed by MGF and Counterparty, and shall not be modified or amended by the terms of purchase orders, packing lists, or other documents issued unilaterally by Counterparty. Neither party’s rights nor obligations hereunder shall be assigned by either party without the prior written consent of the other, except to its successor-in-interest by operation of law or to the transferee of all or substantially all of the party’s assets or business to which these General Terms & Conditions relate. No provision of these General Terms & Conditions shall inure to the benefit of any third person so as to constitute such person a third-party beneficiary hereto or give rise to any cause of action in any such person.
16. If any provision of these General Terms & Conditions is found by a court of competent jurisdiction or an arbitrator to be wholly or partly invalid, the remaining provisions will nonetheless be valid and enforceable.
17. The waiver by MGF of any Counterparty breach of these General Terms & Conditions or forbearance of MGF to enforce its rights hereunder shall not operate or be construed as a waiver of any subsequent breach by Counterparty or a waiver of other rights of MGF.
18. Counterparty authorizes MGF to make such credit, criminal, and other background investigations of Counterparty as MGF deems appropriate for compliance with the AML/ATF Guidelines and the AML/ATF Ordinances or otherwise. Counterparty agrees to provide MGF with the information, certificates and other documents required to make the aforesaid investigations, such as source of the Material, identification of Counterparty’s management members, Counterparty’s shareholders and beneficial owners and their management members.
19. Death of Counterparty. Counterparty agrees that if Counterparty dies or becomes incapacitated or incompetent during a pending transaction with MGF, then MGF shall have the sole discretion to (a) terminate the pending transaction and reclaim any Material or monies provided by MGF to Counterparty and for which MGF did not receive the agreed consideration, or (b) require the completion of the pending transaction through Counterparty’s authorized agent, representative, or estate.
20. Investment Risks. Counterparty understands and acknowledges that: (a) all investments, including precious metal, coins and bullion, involve risk, (b) the value of precious metal, coins and bullion may be affected by many economic factors, including current market prices, perceived scarcity, quality, and current demand, (c) investing in precious metal, coins and bullion may not be suitable for everyone, (d) all investments, including precious metal, coins and bullion, can decline as well as increase in value. Counterparty represents and warrants that it is a commercial entity or person with experience in the sale and purchase of precious metal, coins and bullion, and has adequate cash reserves and disposable income to engage in such investments.
21. LIMITATION OF LIABILITY. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THESE GENERAL TERMS & CONDITIONS, UNDER NO CIRCUMSTANCES SHALL MGF BE LIABLE TO COUNTERPARTY FOR ACTUAL DAMAGES, LOST PROFITS, DAMAGE TO REPUTATION, LOST BUSINESS OPPORTUNITY, INTEREST, ATTORNEYS’ FEES, OR INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY, SPECIAL, OR CONSEQUENTIAL LOSSES OR DAMAGES INCURRED BY COUNTERPARTY FOR BREACH OF ANY OBLIGATION ARISING OUT OF OR RELATING TO THE TRANSACTIONS HEREIN. IN ADDITION TO THE INDEMNITY OBLIGATIONS SET FORTH IN PAR. 9, COUNTERPARTY AGREES THAT MGF’S MAXIMUM, TOTAL LIABILITY TO COUNTERPARTY FOR ANY LOSS OF, OR ANY DAMAGE TO, MATERIAL, INCLUDING BUT NOT LIMITED TO ANY DAMAGE OCCURRING DURING HANDLING, PROCESSING, STONE REMOVAL OR SHIPPING, SHALL BE LIMITED TO THE LESSER OF: A) THE COUNTERPARTY’S DECLARED TOTAL VALUE OF MATERIAL FOR SHIPPING PURPOSES, B) THE ACTUAL, PROVEN AMOUNT PAID BY COUNTERPARTY FOR THE MATERIAL, OR C) WITH RESPECT TO GEMS/STONES, THE AMOUNT OF FEES PAID BY COUNTERPARTY TO MGF FOR REMOVAL SERVICES, NOT TO EXCEED US$500.
22. Counterparty will promptly provide written notice to MGF of any changes to the ownership of Counterparty’s business or other information provided by Counterparty according to par. 18 within 15 days of such change.
23. DISCLAIMER OF WARRANTIES. COUNTERPARTY AGREES THAT NO REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESS OR IMPLIED, SHALL BE BINDING UPON MGF UNLESS EXPRESSED IN WRITING HEREIN. MGF SPECIFICALLY DISCLAIMS AND COUNTERPARTY ACKNOWLEDGES AND ACCEPTS THAT MGF DISCLAIMS ALL WARRANTIES, CONDITIONS, GUARANTEES AND REPRESENTATIONS OF ANY KIND, WRITTEN OR ORAL, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF GOOD AND WORKMANLIKE PERFORMANCE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, OR ANY WARRANTIES ARISING FROM A COURSE OF DEALING, LAW, USAGE OR TRADE PRACTICE, THAT RELATE TO MGF’S RECOVERY EVALUATION OR WEIGHT DETERMINATION, TO MGF’S GEM/STONE REMOVAL SERVICES, TO ANY FORWARD CONTRACT ENTERED INTO BY MGF, ANY SERVICES PROVIDED BY MGF, OR ANY OTHER ASPECT OF COUNTERPARTY’S DEALINGS OR TRANSACTIONS WITH MGF.
REFINING / STONE REMOVAL
24. MGF will weigh received Material (“Received Weight”). If there is a Significant Discrepancy (as defined in par. 25) between the Received Weight and the weight identified by Counterparty in its packing list (“Specified Weight”), then MGF will contact Counterparty to seek agreement on the Material’s weight. If MGF and Counterparty fail to reach agreement, MGF may return the Material to Counterparty at Counterparty’s expense. If no Significant Discrepancy exists between Received Weight and Specified Weight, or if Counterparty and MGF arrive at an agreed weight following a Significant Discrepancy, then MGF will proceed without any liability for weight discrepancies.
25. “Significant Discrepancy” means: (a) for gold, platinum and palladium, a discrepancy of one ounce or greater; (b) for silver, a discrepancy of 15 ounces or greater.
26. To assist in generating its purchase offer for Counterparty’s Material, MGF will assess the Material and its anticipated precious-metal recovery (the “Recovery Evaluation”) and determine a spot price using its sole, reasonable discretion. Counterparty agrees and consents to MGF melting or otherwise transforming the Material as part of its assessment. Unless otherwise agreed in writing, MGF will determine the method used for its Recovery Evaluation, which may include, but not be limited to, X-Ray Fluorescence Spectroscopy (XRF), Inductively Coupled Plasma Mass Spectrometry (ICP), or Fire Assay. Counterparty acknowledges that these methods may yield different Recovery Evaluations when applied to the same Material or same sample of Material. The precious metal percentage listed on MGF’s statement constitutes an estimate of the precious metal recoverable from the Material.
27. MGF will provide a statement reflecting its purchase offer for Counterparty’s Material. This statement may also reflect MGF’s Recovery Evaluation and spot price. Spot prices are subject to change without notice unless locked-in by Counterparty as a Forward Transaction in accordance with par. 12. MGF’s offers do not include taxes. Counterparty is solely responsible for all taxes that may apply to transactions with MGF.
28. ALL SALES FINAL. Counterparty acknowledges that it is free to accept or reject MGF’s purchase offer for Counterparty’s Material. By accepting MGF’s purchase offer and payment for Material, Counterparty acknowledges and agrees as a condition to the sale that: (a) thepurchase offer is fair and reasonable, irrespective of the Recovery Evaluation, analytical methods used by MGF in formulating its offer price, or precious-metal-recovery evaluations performed by others on the Material, (b) Counterparty is a commercial entity with experience in precious-metal valuation, (c) in making its decision whether to accept or reject MGF’s purchase offer, Counterparty is relying on its own experience in the precious metals industry and its independent assessment of the Material’s anticipated recoverable precious-metal and market conditions, and (d) the sale of Counterparty’s Material to MGF is final, and MGF shall have no further obligation or liability to Counterparty with respect to the Material.
29. EXCLUSIVE REMEDIES. If Counterparty rejects MGF’s purchase offer for Material, then Counterparty’s exclusive remedies regarding the proposed transaction are as follows: (a) Counterparty may retrieve the Material in accordance with par. 6 if the Material is still available, or (b) if MGF determines that the Material is no longer available for return, then Counterparty agrees to sell and MGF agrees to purchase the Material at a price determined as follows: (i) if the basis for Counterparty’s purchase-offer rejection relates to the precious-metal content of the Material, then the sale price will be determined via the third-party Umpire process set forth in par. 30, or (ii) if the basis for Counterparty’s purchase-offer rejection relates to any issue other than the Material’s precious-metal content, then the sale price and all other Disputes related to the proposed sale of Material shall be resolved via arbitration as set forth in par. 1. All disputes between Counterparty and MGF which are not otherwise addressed herein shall be resolved via arbitration as set forth in par. 1. If Counterparty disputes the sale of its Material after lock-in or accepting payment from MGF, then Counterparty shall reimburse MGF for any market loss incurred by MGF relating to the Material if its sale is ultimately rescinded or otherwise undone.
30. THIRD-PARTY UMPIRE. If Counterparty rejects MGF’s purchase offer for Material, the Material is no longer available (as determined by MGF), and the basis for Counterparty’s rejection of MGF’s purchase offer relates to the precious-metal content of the Material, then the parties agree to consummate the Material’s sale at a price derived from MGF’s original spot price and Material weight, and a metal content or “assay” result determined as follows: (a) Counterparty shall select an Umpire from a list of MGF-approved, ISO-certified assayers and pay the Umpire’s assay fee, subject to reimbursement as noted herein; (b) MGF shall submit a sample of the Material to the selected Umpire; (c) if the Umpire’s assay result is higher than MGF’s Recovery Evaluation by more than 0.5%, then sale price is based on the Umpire’s result, and MGF reimburses the Umpire fee; (d) if the Umpire’s assay result is the same as or within 0.5% of MGF’s Recovery Evaluation (either lower or higher), then the sale price is based on the average of the MGF and Umpire results, and Counterparty pays the Umpire fee; and (e) if the Umpire’s assay result is lower than MGF’s Recovery Evaluation by more than 0.5%, then sale price is based on MGF’s Recovery Evaluation, and Counterparty pays the Umpire fee.
31. MGF’s obligations to Counterparty are limited to those metals for which Counterparty requested refining services and paid applicable fees. MGF has no obligation to Counterparty regarding any other metals and reserves the right to dispose of or maintain such metals as MGF sees fit.
32. Stone Removal. Counterparty acknowledges and agrees that there are inherent, unavoidable risks of damage and loss associated with the removal of gems and stones, and that MGF reserves the right to remove gems/stones using the method that MGF selects in its sole and absolute discretion. Counterparty agrees that any damage to or loss of gems/stones is subject to the LIMITATION OF LIABILITY set forth in par. 21.
33. If Counterparty fails to arrange at Counterparty’s expense for the return or other disposal of Rejected Material, Defective Material or other Material in MGF’s possession that Counterparty has not agreed to sell to MGF, within 30 days after the Material’s receipt by MGF, then MGF has the right to dispose of the Material in any way MGF deems appropriate at Counterparty’s expense, without MGF incurring any liability to Counterparty.
34. If there is any inconsistency between the English and Chinese version, the English version shall prevail.
35. Live Trades. All transactions with MGF must be conducted live with an MGF representative. MGF has no responsibility or liability for transaction requests place by voicemail, email or other automated means.
36. MGF may record telephone conversations between MGF and Counterparty and Counterparty consents to such recordings.
37. Payment. MGF accepts only the following forms of payment: bank wire, company check, or refining credit fromMGF Falconer Precious Metals. MGF will not ship Material paid for by check until the check clears and funds transfer.
38. Material sent by Counterparty to MGF will be first applied to fill the oldest outstanding MGF purchase order(s).
39. Pricing. MGF offers to purchase or sell Material remain open only for the duration of the telephone call during which they are conveyed, and are thereafter withdrawn. Spot prices are reasonably determined by MGF in its sole and absolute discretion, and are valid only for the duration of the telephone call during which they are conveyed. Prices posted on the MGF website are for informational purposes only and do not constitute an offer to buy or sell.
40. In addition to Paragraphs 35-39 in the Trading section, a Counterparty has the option to physically store Material purchased from MGF in a secure storage facility maintained by a secure-storage provider selected by MGF (“Storage Account”). MGF has full discretion to store the material in any form with same value. Metal purchased from a seller other than MGF is ineligible for storage in the Storage Account.
41. Counterparty may only create a Storage Account via a live telephone call with an MGF representative. A Storage Account has associated fees in addition to the fees paid to purchase Material. Those additional fees, which include but are not limited to storage, withdrawal, transportation and bank wire fees, will be relayed to Counterparty during the live call. A schedule of these charges is confirmed to each customer via a formal email quotation.
42. Counterparty is required to have a minimum storage requirement in its Storage Account. The minimum storage value is HK Dollars 1,000,000.
42. Counterparty may elect to receive physical delivery of the Material in its Storage Account upon calling MGF 3 days in advance. A secure-delivery provider selected by MGF will deliver the Material to Counterparty. Counterparty is responsible for all associated conversion, delivery, and tax charges. Counterparty may not receive physical delivery in locations and/or jurisdictions where physical precious metals are restricted, prohibited or require governmental import licenses or governmental approval.
43. Counterparty can only sell its Material in the Storage Account to MGF. Funds for the sale of Material to MGF will be transferred within 5 business days.