Client Agreement ScotiaFX TM Internet Trading Client Service Agreement Form Please sign the form and email it to Scotia.FX@scotiabank.com or send it via regular mail or courier to the address corresponding to your region: North America: 40 King St West, 56th Floor Toronto, Ontario, M5W 2X6 Canada Attn.: ScotiaFX E-Comm Team Date: Client: (Company Name) Address & Postal/Zip Code: Branch of Account: Branch Address & Postal/Zip Code: Europe: 201 Bishopsgate, 6th Floor London, EC2M 3NS United Kingdom Attn.: ScotiaFX E-Comm Team Asia Pacific: 21st Floor, Central Tower 28 Queen's Road Central Central, Hong Kong Attn.: ScotiaFX E-Comm The Client requests and ("Scotiabank") by its signature and acceptance of this Agreement agrees to provide to the Client the ScotiaFX internet trading service, which facilitates and permits the exchange of communications between Scotiabank and the Client regarding certain foreign exchange, precious metals and other derivative transactions offered on this site (the "Service"). The Client agrees that the Service will be conducted in accordance with the terms and conditions below. The Client has reviewed and familiarized itself with all additional terms applicable to the Service identified or posted in The Bank of Nova Scotia s online trading platform (the ScotiaFX Terms ) and agrees to be bound by them. 1. Internet Access The Client is responsible for arranging access to the internet and the Service (including any required equipment), and for any communications and internet service provider costs associated with connecting to Scotiabank's Service. The Client is responsible for any actions or omissions of its employees, agents, communication and internet service providers while preparing, transmitting, receiving, storing or handling communications between it and Scotiabank. 2. Transaction Confirmation Number and Documentation The Client will be able to enter into foreign exchange transactions, precious metals transactions and other derivative transactions offered through the Service with Scotiabank, subject to any limitations that Scotiabank may place on the Client s account, through the Service. The Client agrees that a valid and binding transaction (a "Confirmed Transaction") will occur through the Service only upon the issuance by Scotiabank of a confirmation deal number for a transaction that has been agreed to, sent or purportedly sent by the Client using the Service. If no confirmation number is issued for a transaction, then the transaction is not binding on either party. The parties agree that Scotiabank may use its complete and absolute discretion in determining whether or not to enter into a Confirmed Transaction with the Client. The Client will perform the obligations it has agreed to perform with respect to a Confirmed Transaction and will provide Scotiabank with settlement instructions for each Confirmed Transaction, which settlement instructions it may select or amend from time to time.
Scotiabank is authorized by the Client to accept and act on instructions transmitted to it by the Client, using the electronic methods of this Service, to transfer funds, precious metals or other assets available from a particular Confirmed Transaction to the credit of a designated third party. Prior to acting on any such instruction, Scotiabank may, but is not obligated to, confirm such instruction with the Client. Notwithstanding the foregoing, the parties agree that foreign exchange transactions entered into between the parties orally shall be legally binding upon the parties once they have agreed to the relevant terms. The parties agree that such transactions may subsequently be confirmed using the Service and that such confirmation shall evidence the terms of the transaction and such transaction shall be a Confirmed Transaction for the purposes of this agreement. Scotiabank shall issue to the Client a confirmation document, which may be in electronic form, which sets out the specific details of a Confirmed Transaction and the terms and conditions that apply to each such Confirmed Transaction that may be entered into. In the event that the parties hereto are parties to, or become parties to a master netting agreement published by the International Swap and Derivatives Association Inc. or any successor entity (an ISDA Agreement ), each Confirmed Transaction, will be subject to the terms and conditions of that specific ISDA Agreement, unless agreed to otherwise by the parties therein. For the avoidance of doubt, if the parties have, or do, enter into an ISDA Agreement each Confirmed Transaction shall be a Transaction (as defined in the ISDA Agreement) and each confirmation document supporting such transaction shall be a Confirmation (as defined in the ISDA Agreement). In the event of any inconsistency between the terms in this Agreement and the terms in any ISDA Agreement, the terms in the ISDA Agreement shall prevail. Notwithstanding the foregoing, if any legal opinion (from counsel in the jurisdiction where the Client is formed, located, resident or transacting) on the enforceability of close-out netting under the ISDA Agreement does not provide positive support for the inclusion and netting of precious metal transactions or other derivative transaction types which have been entered into hereunder under the netting provisions of the ISDA Agreement, then Confirmed Transactions of the type that are not supported by any such legal opinion (as set out above) shall not be subject to, or form part of, the ISDA Agreement. 3. Revisions to the Service s Internet Site Scotiabank may revise the internet site providing the Services or amend the terms of the ScotiaFX Terms from time to time, without prior notice and without the Client's consent. 4. Scotiabank's Liability Scotiabank will use all reasonable efforts to provide the Service, but does not warrant, and expressly disclaims, that the Service or any information contained therein (including any information, software or technology provided by Scotiabank s third party service providers and licensors (each a Licensee Supplier and combined the Licensee Suppliers )) will always be available, error free or that its operation will always be uninterrupted. Scotiabank shall not be liable for any failure or delay in the Service or the performance of its obligations hereunder if such failure or delay results from a cause beyond its reasonable control. Scotiabank shall not be liable for any indirect, special, punitive, incidental or consequential damages or losses of any kind to the Client arising under the Client s use of the Service, excluding damages or losses resulting from Scotiabank s gross negligence, willful misconduct or fraud. Subject to Paragraph 8 herein, notwithstanding any arrangement with Scotiabank, in no case will Scotiabank's maximum liability (directly or indirectly) to the Client with respect to the Service, exceed the amount of interest charges or fees incurred or lost by the Client as a result of any error, unavailability or interruption in the Service on the part of Scotiabank or its agents or service providers. Client agrees and acknowledges that: (a) no Licensee Supplier shall be liable (including but not limited to, for any direct, indirect, special, punitive, incidental or consequential damages or losses) to Client for any reason in respect of, or relating to the Services; (b) all Licensee Suppliers expressly disclaim any warranties to the Client in respect of, or relating to the Services, (c) it shall not make any claims against any Licensee Supplier in respect of, or in relation to the Services, including but not limited to any claims concerning any software, technology or information supplied or licensed by such Licensee Supplier and used in, or used to provide or perform, the Service, and (d) the limitations, disclaimers, exclusions and agreements in favor of the Licensee Suppliers set forth in this Paragraph 4 will be held in trust by Scotiabank for, and enure to the benefit of, the Licensee Suppliers and will be binding on the Client. 5. Client's Liability The Client shall not take any action which will cause the Service to malfunction or impair Scotiabank's ability to provide an efficient Service. The Client shall take appropriate security and confidentiality measures in relation to its use of the Service. The Client is responsible and liable for all electronic communications to Scotiabank made using security codes, digital certificates and/or passwords assigned to the Client, including any transaction entry errors, unauthorized use of the Service by persons having access to the Service from the Client, and fraudulent account transactions. 2
The Client shall fully indemnify and hold harmless Scotiabank from any claims and demands that may be asserted by a third party against Scotiabank with respect to any funds, assets or precious metals that should have been or may have been transferred to it at the instruction(s) of the Client in relation to this Service or a Confirmed Transaction. The Client shall fully indemnify Scotiabank for any reasonable transfer fees or charges payable by Scotiabank to a third party in order to comply with the Client s instructions in respect of a Confirmed Transaction. The Client shall ensure that it has deposited sufficient funds, assets or precious metals into its settlement account in order to meet its payment or delivery obligations in respect of a Confirmed Transaction prior to settlement. The Client, in respect of its payment and delivery obligations which are not paid or completed when due, shall pay to Scotiabank interest on the overdue amount, on demand and in the same currency as such overdue amount, for the period from and including the original due date for payment or delivery to (but excluding) the actual date of payment or delivery at an annual rate equal to the cost to Scotiabank (without proof or evidence of any actual cost) if it were to fund the relevant overdue amount plus 1% (one percent). Interest shall be calculated on the basis of daily compounding and the actual number of days elapsed. In order to comply with its disclosure obligations as set out in the Interest Act (Canada), Scotiabank advises the Client that the yearly rate of interest applicable in respect of any rate of interest identified in this agreement or otherwise on a basis other than a full calendar year will equal that rate of interest multiplied by the number of days in the relevant calendar year and divided by the number of days comprised in the other rate. The Client shall ensure that it has provided Scotiabank with sufficient and complete settlement instructions and authorizations, if applicable, prior to any settlement date in respect of a Confirmed Transaction. If Scotiabank has not been provided with settlement instructions with respect to a Confirmed Transaction prior to the settlement date, it shall be entitled to, at its sole option, debit and credit the accounts of the Client provided to Scotiabank by the Client in the ScotiaFX Application Form. The parties agree and acknowledge that if a transaction entered into hereunder is scheduled to settle on a day which is not a Business Day in respect of either currency being settled, then it shall settle on the next Business Day applicable to both currencies. Business Day means any day on which commercial banks are open for business in respect of dealings in the relevant currencies being transacted, or in the location where a delivery is attempted. All payments under this Agreement by a party (the Payer ) shall be made free and clear of and without deduction for any and all present and future taxes, levies and withholdings including stamp and documentary taxes, other than taxes imposed on the net income of the party receiving the payment (collectively Taxes ). If the Payer is required by law to deduct any Taxes from or in respect of any amount paid or payable hereunder, such amount shall be increased as necessary so that the party receiving the payment (the Payee ) receives an amount equal to the sum it would have received had no such deduction been made and the Payer shall pay same to the relevant taxing authority and give to the Payee acceptable evidence of such payment. The Payer will indemnify the Payee for any Taxes paid by the Payee in respect of any amount paid or payable by the Payer hereunder. The provisions of this Paragraph as they pertain to Taxes, shall survive payment in full hereunder. 6. Governing Law For the purposes of this Agreement, the terms set out below following the checked box, shall apply, provided however, if no box is checked, the terms set out in the immediately following paragraph shall apply: This Agreement and any document delivered under it shall be governed exclusively by the laws of the Province of Ontario and those of Canada applicable thereto. Any legal action in relation to this Agreement must be taken by one party against the other no later than one year after the cause of action arose. Each party irrevocably submits to the non-exclusive jurisdiction of the courts of competent jurisdiction of the Province of Ontario. Nothing in this Agreement precludes either party from bringing proceedings in any other jurisdiction nor will the bringing of proceedings in any one or more jurisdictions preclude the bringing of proceedings in any other jurisdiction. This Agreement will be governed by and construed in accordance with the law of the State of New York and each party submits to the non-exclusive jurisdiction of the courts of the State of New York and the United States District Court located in the Borough of Manhattan in New York City; and waives any objection which it may have at any time to the laying of venue of any proceedings brought in any such court, waives any claim that such proceedings have been brought in an inconvenient forum and further waives the right to object, with respect to such proceedings, that such court does not have any jurisdiction over such party. Nothing in this Agreement precludes either party from bringing proceedings in any other jurisdiction nor will the bringing of proceedings in any one or more jurisdictions preclude the bringing of proceedings in any other jurisdiction. This Agreement will be governed by and construed in accordance with English Law. With respect to any suit, action or proceedings relating to this Agreement ("Proceedings"), the Client irrevocably submits to the jurisdiction of the English courts and waives any objection which it may have at any time to the laying of venue of any Proceedings 3
brought in any such court, waives any claim that such Proceedings have been brought in an inconvenient forum and further waives the right to object, with respect to such Proceedings, that such court does not have any jurisdiction over such party. Any dispute, controversy or claim arising out of or in connection with this Agreement, including any question regarding its existence, validity or termination, shall be referred to, and finally resolved by arbitration under the Rules of the London Court of International Arbitration ( LCIA ), which Rules are deemed to be incorporated by reference into this Agreement. The tribunal shall consist of three arbitrators. One arbitrator shall be nominated by each party. The third arbitrator, who shall act as chairman, shall be nominated by these two arbitrators. In the event that the two arbitrators are unable to agree on the identity of the third arbitrator, that person shall be appointed by the LCIA. The seat or legal place of arbitration shall be London. The language of the arbitration shall be English. The governing law of the contract shall be the substantive law of England. 7. Optional Termination of the Agreement The Client and Scotiabank may individually terminate this Agreement upon giving thirty (30) days written notice to the other party. In the event of a material adverse change in the financial condition of the Client or in its business prospects, Scotiabank may terminate this Agreement on one (1) Business Day(s) notice to the Client. The respective rights or obligations of the parties under these circumstances and arising under any transaction for which a confirmation number has been issued prior to the effective date of any such termination shall not be affected. 8. Termination on Account of an Event of Default Scotiabank may, upon written notice to the Client (the Default Notice ), immediately terminate this Agreement if either: (a) the Client fails to comply with any of its payment or delivery obligations under this Agreement and such failure is not cured within one Business Day of its receipt of notice of such default; or (b) an Act of Insolvency has occurred in respect of the Client. Commencing on the date of the Client s receipt of the Default Notice (the Termination Date ), no further payment or deliveries in respect of Confirmed Transactions will be required to be made. The amount, if any, payable with respect to this early termination by either Scotiabank or the Client to the other (the Termination Amount ), shall be the amount, determined on the Termination Date (or if not practical, as soon as possible after such date), that Scotiabank reasonably determines in good faith to be its total losses and costs (expressed as a positive number) or gains (expressed as a negative number) in connection with this Agreement and each outstanding Confirmed Transaction, as the case may be, including any loss of bargain, cost of funding or, at the election of such party but without duplication, loss or cost incurred as a result of its terminating, liquidating, obtaining or reestablishing any hedge or related trading position (or any gain resulting from any of them). The Termination Amount shall include outstanding payments and deliveries, which were not completed prior to the Termination Date. The Termination Amount shall be in United States Dollars or Canadian Dollars (as determined by Scotiabank) and any amounts determined under this Paragraph 8 which are in a currency other than such currency, shall be converted into such currency using the spot rate prevailing at the relevant time, as reasonably determined by Scotiabank. For the avoidance of doubt if the Termination Amount determined by Scotiabank is a negative amount, then Scotiabank shall pay the absolute value of that amount to the Client and if such amount is a positive number, the Client shall pay such amount to Scotiabank. Scotiabank shall notify the Client of the Termination Amount as soon as reasonably possible and shall provide the Client with its calculations supporting its determination of the Termination Amount. The Termination Amount shall be payable and due on the date that the notice of the Termination Amount is effective. For the purposes of this Agreement, "Act of Insolvency" means in relation to the Client, (i) its making a general assignment for the benefit of, or entering into a reorganization, arrangement, or composition with creditors; or (ii) its stating in writing that it is unable to pay its debts as they become due; or (iii) its seeking, consenting to or acquiescing in the appointment of any trustee, administrator, receiver or liquidator or analogous officer of it or any material part of its property; or (iv) the presentation or filing of a petition in respect of it (other than by the other party to this Agreement in respect of any obligation under this Agreement) in any court or before any agency alleging or for the bankruptcy, winding-up or insolvency of such party (or any analogous proceeding) or seeking any reorganization, arrangement, composition, re-adjustment, administration, liquidation, dissolution or similar relief under any present or future statute, law or regulation, such petition not having been stayed or dismissed within 15 days of its filing (except in the case of a petition for winding-up or any analogous proceeding in respect of which no such 15 day period shall apply); or (v) the appointment of a receiver, administrator, liquidator or trustee or analogous officer of such party over all or any material part of such party's property; or (vi) the convening of any meeting of its creditors for the purpose of considering a voluntary arrangement. 4
9. General Provisions This Agreement shall be validly binding upon the parties if it is executed by authorized officer(s) of the parties and even if delivered by facsimile to the parties. The Client authorizes Scotiabank to record any telephone or other verbal communications related to the Service, including as to transactions whether consummated or not. The obligations of the parties hereunder to make payments in any currency of payment and account shall not be discharged or satisfied by any tender or recovery pursuant to any judgment expressed in or converted into any other currency except to the extent to which such tender or recovery shall result in the effective receipt by the payee of the full amount of such currency of payment and account so payable and accordingly the obligation of the payer shall be enforceable as an alternative or additional cause of action for the purpose of recovery in the other currency of the amount (if any) by which such effective receipt shall fall short of the full amount of such currency of payment and account so payable and shall not be affected by any judgment being obtained for any other sums due hereunder. The parties agree that all Confirmed Transactions are entered into in reliance on the fact that this Agreement and all Confirmed Transactions form a single agreement between the parties, and the parties would not otherwise enter into any Confirmed Transactions. The parties have required that this Agreement, all confirmations, and all documents used in connection with the Service be drawn up in English. Les parties aux présentes ont exigé que la présente convention ainsi que toutes les confirmations et tous les documents et avis qui s'y rattachent et/ou en découlent soient rédigés en langue anglais. 10. Authorized Persons Scotiabank is authorized and directed by the Client to provide to the persons named and designated by the Client ("Authorized Users") in its completed ScotiaFX Application Form, which has been received by Scotiabank, any software and any security devices, including security cards, codes, digital certificates and passwords related to the Service. The Authorized Users may determine and set levels and limits of authority applicable to individual security devices for the Client. Any change to the list of Authorized Users of the Client must be made in writing and is effective two (2) Business Days after Scotiabank's receipt thereof. 11. Set-Off If (a) the Client has failed to comply with any of its obligations under this Agreement; (b) an Act of Insolvency has occurred in respect of the Client; or (b) if any of the Client s representations proves to have been incorrect or misleading in any material respect, then any amount which is due and owing by Scotiabank under this Agreement (including but not limited to the Termination Amount) may be set-off by Scotiabank, at Scotiabank s option (without prior notice to the Client) against amounts payable (whether at such time or in the future or upon the occurrence of a contingency) to Scotiabank by the Client under this Agreement or any other agreement in place between Scotiabank and the Client (irrespective of the currency, place of payment or booking office of the obligation). Scotiabank will give notice to the Client of any set-off affected under this section. 12. Client s Representations Upon executing this Agreement and upon entering into each Confirmed Transaction using the Service, the Client represents and will be deemed to represent to Scotiabank that: (i) (ii) (iii) (iv) (v) (vi) it acknowledges that foreign exchange, derivative and precious metal transactions involve risks, including the risk of losses associated with currency and market fluctuations, and is willing to accept and is capable of understanding any and all such risks; it is familiar with the Service and fully understands its payment and settlement obligations being created thereunder; it is entering into each transaction as principal; it is using the Service for legitimate business purposes; all transactions entered into hereunder comply with all applicable laws and regulations applicable to it and its constitutional documents; and it is not relying on any information provided on the internet site associated with the Service or any information or communications from Scotiabank and acknowledges that any such information is not business or investment advice and that it has made its own independent decision to enter into this Agreement and any Confirmed Transaction under the Service based upon its own judgment. 5
13. Fees The Client agrees to pay any fees, charges and interest owing with respect to its use of the Services promptly when due, as set out in any applicable fee schedule, service request, statement or as otherwise advised to the Client in relation to the Service. The Client will be advised of any fees, charges or interest applicable to its use of the Service upon Scotiabank s acceptance of the Client s application to use the Service, or at any time thereafter. Scotiabank reserves the right to change, add or increase fees, charges or interest applicable to the Client in respect of its use of the Service at any time, by providing the Client with notice of such changes. Scotiabank will provide the Client with 30 days prior notice of any such changes, additions or increases prior to such changes being effective. Scotiabank will provide the Client with notice either to the address provided to Scotiabank by the Client in the ScotiaFX Application Form, or by posting a notice on the Service s internet site, or by providing the client with electronic notice through the Service. Scotiabank will provide the Client with details of any applicable fees, charges and interest applicable in respect of the Service upon request. Unless agreed to otherwise in writing, in the event of any inconsistency in the rates, fees, charges or interest applicable in respect of the Service and any rates in respect of fees, charges or interest amounts agreed to between the parties in respect of any other services provided by Scotiabank to the Client, the rates applicable in respect of the Service shall govern. Scotiabank is entitled to deduct from the accounts of the Client the fees, charges and interest applicable to the Service and will provide the Client with notices providing details for the relevant fees, changes and interest owing from time to time. The Client will be deemed to receive notice five days after mailing, or at the time of delivery in respect of personal delivered mail or registered mail or at the time of posting or sending in respect of electronic notifications. 14. Notices Any notice or other communication in respect of this Agreement may be given in writing and delivered in person or by courier or by certified or registered mail to the address or number provided herein, and will be deemed effective on the date it is delivered, unless the date of that delivery (or attempted delivery) or that receipt, as applicable, is not a Business Day or that communication is delivered (or attempted) or received, as applicable, after the close of business on a Business Day, in which case that communication shall be deemed given and effective on the first following day that is a Business Day. In witness whereof the parties have executed this agreement as of the above date Client (Company Name) Witness Signature Authorized Signature Insert Name of Witness Insert Name and Title of Person Signing Witness Signature Authorized Signature Insert Name of Witness Insert Name and Title of Person Signing ACCEPTED AND AGREED THE BANK OF NOVA SCOTIA By: Title 6