Custody Agreement Amended and Restated Allocated Gold Account Agreement, dated November 23, 2020
Dated as of 23 November 2020
ICBC STANDARD BANK PLC
WORLD GOLD TRUST
on behalf of its series set forth on Schedule A hereto
AMENDED AND RESTATED
ALLOCATED GOLD ACCOUNT AGREEMENT
This ALLOCATED GOLD ACCOUNT AGREEMENT (this Agreement) is made as of the date set out on the cover page of this Agreement
ICBC Standard Bank Plc, a public limited company incorporated under the laws of England and Wales with its registered office at 20 Gresham Street, London, EC2V 7JE, United Kingdom (the Custodian); and
World Gold Trust, a Delaware statutory trust organized in series having its principal office and place of business at 685 Third Avenue, 27th Floor, New York, NY 10017 (the Trust),
(the Custodian and the Trust each a Party and together, the Parties).
On 14th June 2018, the Custodian and the Trust entered into the Allocated Gold Account Agreement (the Original Agreement) and on 28 September 2020 the Parties amended the Original Agreement to include the terms for the Phoenix Portal. The Parties now wish to amend and restate the Original Agreement, as amended, on the terms set out in this Agreement.
The Custodian has agreed to open and maintain an Allocated Account for each series of the Trust listed on Schedule A hereto (each, a Fund and collectively, the Funds) and to provide other services to the Funds in connection with the Allocated Accounts.
Shares may be issued by a Fund against delivery of Gold made by way of payment for the issue of such Shares. The Trust has agreed that Gold delivered in connection with a subscription for Shares will be paid into the Metal Accounts.
The Custodian has agreed to transfer Gold deposited into a Fund Unallocated Account to the corresponding Fund Allocated Account in connection with a subscription for Shares and to transfer Gold from the Fund Allocated Account to the Fund Unallocated Account in connection with redemption of Shares.
The Trust has agreed that each Fund Allocated Account will be established for the account of the applicable Fund, and that the Trust will have the sole right to give instructions for the making of any payments into or out of a Fund Allocated Account.
IT IS AGREED AS FOLLOWS
Definitions: In this Agreement, unless there is anything in the subject or context inconsistent therewith, the following expressions shall have the following meanings.
Affiliate means an entity that directly or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with the Custodian.
Agreement means this amended and restated allocated gold accounts agreement between the Custodian and the Trust.
AURUM means the electronic matching and settlement system operated by LPMCL.
Authorized Participant shall have the meaning assigned to such term in the Unallocated Gold Account Agreement.
Authorised Representatives has the meaning given to that expression in clause 5.1.
Dispute means for the purpose of clause 16 any disagreement between the Trust and the Custodian which has not been resolved amicably within a period of fourteen London Business Days after the Custodian has received from the Trust, or the Trust has received from the Custodian, written notification of the disagreement.
Fund Allocated Account means the loco London Gold account established in the name of a Fund and maintained for the benefit of the Fund by the Custodian on an allocated basis pursuant to this Agreement.
Fund Unallocated Account means the loco London Gold account established in the name of a Fund and maintained for the benefit of the Fund by the Custodian on an Unallocated Basis pursuant to the Unallocated Gold Account Agreement.
Gold means (i) Physical Gold held by the Custodian or any Sub-Custodian under this Agreement and/or (ii) any credit to an account, including a Fund Unallocated Account, on an Unallocated Basis, as the context requires.
Indirect Sub-Custodian has the meaning given to that expression in clause 8.1(i).
LBMA means The London Bullion Market Association or its successors.
Loco London means with respect to an account holding Gold, the custody, trading or clearing of such Gold in London, United Kingdom.
London Business Day means a day (excluding Saturdays, Sundays and public holidays) on which commercial banks generally are open for business in London and on which the London gold bullion market is open for business.
LBMA Gold Price PM means the price of a troy ounce of gold as determined by ICE Benchmark Administration, the third party administrator of the London gold price selected by the LBMA, or any successor administrator of the London gold price, at or about 3:00 p.m. London, England time.
London Good Delivery Rules means the specifications for good delivery gold bars, including, without limitation, the specifications for weight, dimensions, fineness (or purity), identifying marks and appearance of gold bars, set forth in The Good Delivery Rules for Gold and Silver Bars published by the LBMA.
LPMCL means London Precious Metals Clearing Limited or its successors.
Metal Accounts means a Fund Allocated Account and the corresponding Fund Unallocated Account.
New York Business Day means a day other than a day on which a Funds listing exchange is closed for regular trading.
Phoenix Portal means the Custodians electronic system which allows input of clearing instructions and viewing of account balances, as it may be updated from time to time.
Physical Gold means gold bullion that meets the London Good Delivery Rules.
Point of Delivery means such date and time that the recipient (or its agent) acknowledges in written form its receipt of delivery of Physical Gold;
Rules means the rules, regulations, practices, procedures and customs of the LBMA, including the London Good Delivery Rules, the LPMCL, the Financial Conduct Authority, the Prudential Regulation Authority, The Governor and Company of the Bank of England and such other regulatory authority or other body, applicable to the activities contemplated by this Agreement, including the activities of any Sub-Custodian.
Shareholder means the beneficial owner of one or more Shares of a Fund.
Shares means the units of fractional undivided beneficial interest in a Fund which are issued by the Fund pursuant to its Prospectus.
Sponsor means WGC USA Asset Management Company, LLC, its successors and assigns and any successor Sponsor.
Sub-Custodian means a sub-custodian (including an entity within our corporate group) selected by the Custodian (and approved in writing by the Trust and the Sponsor) for the temporary custody and safekeeping of the Physical Gold in a Fund Allocated Account.
Unallocated Basis means, with respect to the holding of gold, that the holder is entitled to receive delivery of Physical Gold in the amount standing to the credit of the holders account, but the holder has no ownership interest in any particular gold that the custodian maintaining that account owns or holds.
Unallocated Gold Account Agreement means the Unallocated Account Agreement of even date herewith between the Trust and the Custodian pursuant to which each Fund Unallocated Account is established and operated.
VAT means value added tax as provided for in the Value Added Tax Act 1994 (as amended or re-enacted from time to time) and legislation supplemental thereto and any other tax (whether imposed in the United Kingdom in substitution thereof or in addition thereto or elsewhere) of a similar fiscal nature.
Headings: The headings in this Agreement do not affect its interpretation. Any Schedule to this Agreement shall form part of this Agreement.
Singular and plural: References to the singular include the plural and vice versa.
Construction: The word including means including without limitation. The word or is not exclusive.
Opening Allocated Account: The Custodian shall open and maintain the Fund Allocated Account for each Fund.
Deposits and Withdrawals: A Fund Allocated Account shall evidence and record deposits and withdrawals of Physical Gold made pursuant to the terms of this Agreement.
Denomination of Allocated Accounts: A Fund Allocated Account will hold deposits of Physical Gold and will be denominated in fine troy ounces (to three decimal places).
Allocated Account Reports: The Custodian shall provide to the Trust the notices and reports as the Trust and the Custodian may agree from time to time. Such reports and notices shall be sent via email to ***@*** or other electronic delivery as agreed upon. Such reports and notices also will be made available to the Trust by means of the Phoenix Portal, provided that, if the Phoenix Portal is unavailable for any reason, the Trust and the Custodian will agree upon a temporary notification system for making such reports and notices available to the Trust. Allocated holdings are available real time on the Custodians Phoenix Portal and, for the avoidance of doubt, are not held on the Custodians balance sheet.
Reversal of Entries: The Custodian shall reverse any provisional or erroneous entries to a Fund Allocated Account which it discovers or of which it is notified with effect back-valued to the date upon which the final or correct entry (or no entry) should have been made and shall provide notice thereof as the Custodian and the Trust may agree from time to time.
Provision of Information: Subject to clause 7.3, the Custodian agrees that it will forthwith notify the Trust in writing of any encumbrance of which it is aware is or is purported to have been created over or in respect of a Fund Allocated Account or any of the amounts standing to the credit thereof.
Access: The Custodian will allow the Sponsor and the Trust and their identified representatives, independent public accountants and bullion auditors access to its vault premises, upon reasonable notice during normal business hours but without limitation on the frequency of access to such premises, to examine the Physical Gold held in a Fund Allocated Account and such records as they may reasonably require to perform their respective duties with regard to investors in a Funds Shares. The Trust agrees that any such access shall be subject to execution of a confidentiality agreement and agreement to the Custodians security procedures, and any such audit shall be at the applicable Funds expense.
Regulatory Reporting: To the extent that the Custodians activities under this Agreement are relevant to the preparation of the filings required of the Trust under the securities laws of the United States or any other jurisdiction, the Custodian will, to the extent permitted by applicable law, the Rules or applicable regulatory authority, cooperate with the Trust and the Sponsor and the Trusts and the Sponsors representatives to provide such information concerning the Custodians activities as may be necessary for such filings to be completed. Additionally, to the extent that the Custodians activities or controls in its capacity as custodian of the Trusts assets are relevant to the information presented in the financial statements of the Trust, the Custodian will cooperate with the Sponsor and the Trust to assist the Sponsor in providing the required written assurances regarding the reliability of the internal controls used in the preparation of such financial statements, including by providing the Sponsors and the Trusts external auditors with any necessary information and reports regarding the Custodians internal controls over financial reporting as far as such reporting relates to the scope of the Custodians duties.
Procedure: The Custodian shall receive deposits of Physical Gold into a Fund Allocated Account relating to the same kind of Physical Gold and having the same denomination as that to which the corresponding Fund Unallocated Account relates only pursuant to transfers from the Fund Unallocated Account as provided in clause 4.1(b) of the Unallocated Gold Account Agreement or as otherwise agreed upon between Custodian and the Trust. The notice for any deposit of Gold to be made into a Fund Allocated Account in connection with clause 4.1(b) of the Unallocated Gold Account Agreement shall be made in accordance with clause 4.2(b) of the Unallocated Gold Account Agreement.
Right to Amend Procedure: The Custodian may amend the procedure in relation to the deposit of Gold to a Fund Allocated Account only where such amendment is caused by a change in the Rules, provided that the Custodian shall, whenever practicable, notify the Trust and the Sponsor within a commercially reasonable time
prior to the date on which the Custodian amends its procedures or imposes additional ones in relation to the transfer of Gold into a Fund Allocated Account, and in doing so the Custodian will consider the Trusts and the Sponsors needs to communicate any such change to Authorized Participants and others.
Allocation: Subject always to clause 5.3 of the Unallocated Gold Account Agreement, the Trust acknowledges that the process of allocation of Physical Gold to a Fund Allocated Account from the Fund Unallocated Account may involve minimal adjustments to the weights of Physical Gold to be allocated to adjust such weight to the number of whole bars available.
Procedure: The Trust may at any time give instructions to the Custodian for the withdrawal of Physical Gold from a Fund Allocated Account as provided for in this Agreement, provided that a withdrawal may be made only by:
transfer to the corresponding Fund Unallocated Account or another account maintained on an Unallocated Basis or as otherwise permitted in connection with the transfers described in clause 4.1(a) of the Unallocated Gold Account Agreement; or
transfer in the manner described in clauses 4.1(c) and (d) of the Unallocated Gold Account Agreement.
The Trust anticipates exercising its rights under clauses 4.1(c) and (d) of the Unallocated Gold Account Agreement on an exceptional basis only. Any Gold made available to the relevant person (as instructed by the Trust) pursuant to clauses 4.1(c) and (d) will be in a form which complies with the Rules or in such other form as may be agreed between the Trust and the Custodian the combined fine weight of which will not exceed the number of fine ounces of Gold the Trust has instructed the Custodian to debit.
Notice Requirements: The notice for any withdrawal of Gold to be made from a Fund Allocated Account (i) in connection with clause 4.1(a) of the Unallocated Gold Account Agreement shall be made in accordance with clause 4.2(a) of the Unallocated Gold Account Agreement and (ii) in connection with clauses 4.1(c), (d) or (e) (with respect to transfers other than for the sale of Gold) of the Unallocated Gold Account Agreement shall be made in accordance with clause 4.2(c) of the Unallocated Gold Account Agreement.
Right to Amend Procedure: The Custodian may amend the procedure for the withdrawal of Gold from a Fund Allocated Account only where such amendment is caused by a change in the Rules. Any such amendment will be subject to the notification conditions of clause 3.2.
Specification of Physical Gold: The Custodian may specify the serial numbers of the bars to be withdrawn once it receives instructions from the Trust to effect a withdrawal of Physical Gold pursuant to clause 4.1. The Custodian is entitled to select the Physical Gold to be made available for any such withdrawal, provided, however, that it will use commercially reasonable best efforts to select the smallest amount of Physical Gold necessary to satisfy the withdrawal instruction. To the extent the Trust provides specific serial numbers of bars to be so selected (which the Trust undertakes to the Custodian it shall use its best efforts to do no more than once per calendar quarter), the Custodian will select such Physical Gold as specified by the Trust.
Delivery Obligations: Unless otherwise instructed by the Trust on behalf of a Fund or the relevant person, the Custodian shall make any transportation and insurance arrangements in respect of delivery of Physical Gold in accordance with its usual practice. Where instructions are given, the Custodian shall use all reasonable efforts to comply with the same. The Custodian shall not be obliged to effect any requested delivery if, in its commercially reasonable opinion, this would cause the Custodian or its agents to be in breach of the Rules or other applicable law, court order or regulation, the costs incurred would be excessive or delivery is impracticable for any reason. All insurance and transportation costs shall be for the account of the applicable Fund.
De-allocation: Following receipt by the Custodian of notice for the withdrawal of Physical Gold from a Fund Allocated Account pursuant to clause 4.1, the Custodian shall de-allocate sufficient Physical Gold from the Fund Allocated Account to credit the corresponding Fund Unallocated Account in the amount required. The Trust acknowledges that the process of de-allocation of Physical Gold for withdrawal and/or credit to the Fund Unallocated Account may involve minimal adjustments to the weight of Physical Gold to be withdrawn to adjust such weight to the whole bars available.
Risk: Where there is a shipment from the Custodian of Physical Gold, all risk in and to such Physical Gold shall pass at the Point of Delivery to the relevant person for whose account the Physical Gold is being delivered.
Giving of Instructions: Only the Trust, on behalf of the applicable Fund, acting through its authorised representatives, shall have the right to give instructions in respect of a Fund Allocated Account. The Trust shall notify the Custodian in writing of the names of the people who are authorised to give instructions on a Funds behalf (the Authorised Representatives). Until the Custodian receives written notice to the contrary, the Custodian is entitled to assume that any of those people have full and unrestricted power to give instructions on a Funds behalf. The Custodian is also entitled to rely on any instructions which are from, or which purport to emanate from, any person who appears to have such authority. The Custodian reserves the right to obtain further validation of any instructions.
Transfer Instructions: All transfers into and out of a Fund Allocated Account shall be made upon receipt of, and in accordance with, instructions given by the Trust to the Custodian. Such instructions shall be given through the Phoenix Portal or by authenticated SWIFT message or, if for any reason the SWIFT messaging system is not operational, by such other temporary means as the Trust and the Custodian may agree from time to time. Other information (which shall not constitute an instruction)
related to transfers into and out of a Fund Unallocated Account may be sent between the Trust and the Custodian by email or by such other means as the Trust and the Custodian may agree from time to time. Any such communication shall be deemed to have been given, made or served upon actual receipt by the recipient.
Account Not to be Overdrawn: Except as otherwise specifically provided herein, a Fund Allocated Account may not at any time have a debit balance thereon, and no instruction shall be valid to the extent that the effect thereof would be for the Fund Allocated Account to have a debit balance thereon.
Amendments: Once given, instructions continue in full force and effect until they are cancelled, amended or suspended. Any communication that cancels, amends or suspends as instruction shall be valid only after actual receipt by the Custodian in accordance with clause 5.2.
Unclear or Ambiguous Instructions: If, in the Custodians opinion, any instructions are unclear or ambiguous, the Custodian shall use reasonable endeavours (taking into account any relevant time constraints) to obtain clarification of those instructions from the Trust and, failing that, the Custodian may in its absolute discretion and without any liability on its part, act upon what the Custodian believes in good faith such instructions to be or refuse to take any action or execute such instructions until any ambiguity or conflict has been resolved to the Custodians reasonable satisfaction.
Refusal to Execute: The Custodian may refuse to execute instructions if in its reasonable opinion they are or may be, or require action which is or may be, contrary to the Rules or any applicable law.
CONFIDENTIALITY AND DATA SECURITY
Disclosure to Others: Subject to clause 6.2, each party shall respect the confidentiality of information acquired under this Agreement and neither will, without the consent of the other party, disclose to any other person any transaction or other information acquired about the other party, its business or the Trust under this Agreement, provided that such other party has made clear, at or before the time such information is provided, that such information is being provided on a confidential basis (hereinafter referred to as Confidential Information). Notwithstanding anything to the contrary in this Agreement, to the extent required, a copy of this Agreement may be filed under the securities laws of the United States or any other jurisdiction in connection with the registration of the public offering of Shares by the Trust.
Permitted Disclosures: Each party accepts that from time to time the other party may be required by law or the Rules, or required or requested by a government department or agency, fiscal body or regulatory or listing authority, required by the LPMCL (e.g., in connection with AURUM), or required as otherwise may be necessary in conducting the Trusts business, to disclose this Agreement or Confidential Information acquired under this Agreement. In addition, the disclosure of such information may be required by a partys auditors, by its legal or other advisors, by a company which is in the same group of companies as a party (i.e., a subsidiary
|or holding company of a party) or (in the case of the Trust) by the Sponsor, or any beneficiary of the Trust. Subject to the agreement of the party to which information is disclosed to maintain it in confidence in accordance with clause 6.1, each party irrevocably authorizes such persons to make such disclosures without further reference to such party. The obligations of each party under clause 6.1 will not apply to any Confidential Information that: (a) was known to the receiving party prior to the date of this Agreement other than as a result of disclosure under any other agreement between the parties, (b) is or becomes generally available to the public through means other than an unauthorized disclosure by the receiving party, (c) was or subsequently is disclosed to the receiving party by a third party having a bona fide right to disclose such Confidential Information without breaching any obligation to the disclosing party, or (d) is developed by the receiving party independently of information disclosed by the disclosing party.|
Permitted Disclosures to LPMCL and/or Other Clearing Members: The Trust acknowledges that, the Custodian is a member of the LPMCL, and that from time to time in carrying out its duties and obligations under this Agreement, it may be necessary for the Custodian to disclose to LPMCL and/or other clearing members, details of deposits and/or withdrawals undertaken or to be undertaken on the Trusts behalf pursuant to the terms of this Agreement, the Trusts account details and certain other information in order to act in accordance with the Trusts notices hereunder. Such disclosures may be made by the Custodian for the purposes set out in this clause 6.3.
Data Security: The Custodian shall implement administrative, physical and technical safeguards to protect Confidential Information under this Agreement consistent with applicable industry standards. The Custodian hereby confirms that the information technology resources used for administering the Allocated Account are located within the territory of the United Kingdom and that it shall seek the prior written consent of the Trust in the event that such resources are located outside of the United Kingdom or the European Union.
Appointment: The Trust hereby appoints the Custodian to act as custodian and bailee of the Physical Gold held in a Fund Allocated Account in accordance with this Agreement and any Rules which apply to the Custodian, and the Custodian hereby accepts such appointment. Except as otherwise expressly provided by this Agreement the Custodian does not undertake the responsibility of a trustee or any other duties in relation to such Physical Gold, not implied by the law of bailment.
Segregation of Physical Gold: The Custodian will be responsible for the safekeeping of the Physical Gold on the terms and conditions of this Agreement. The Custodian will segregate the Physical Gold held in the Fund Allocated Account from any Physical Gold which the Custodian owns or holds for others by making appropriate entries in its books and records to identify such Physical Gold as being held in a Fund Allocated Account and that such Physical Gold is owned solely by the Trust and will require each Sub-Custodian to segregate the Physical Gold held by them for the Custodian (including any Physical Gold which the Custodian holds for the benefit of the
Trust in the Fund Allocated Account in accordance with this Agreement) from any Physical Gold which they own or hold for others by making appropriate entries in their books and records to identify such Physical Gold as being held by them for the Custodian (including any Physical Gold which the Custodian holds for the benefit of the Trust in a Fund Allocated Account in accordance with this Agreement). Entries on the Custodians books and records will identify Physical Gold held by the Custodian, or, as applicable, at a Sub-Custodian, for the benefit of the Trust in a Fund Allocated Account, and will refer to each bar of Physical Gold by refiner, assay, serial number and gross and fine weight, and by any other marks required for the identification of a bar of Physical Gold under the Rules. The Custodian will notify the Trust of all Physical Gold held by the Custodian, or, as applicable, a Sub-Custodian, for the benefit of the Trust, in accordance with clause 2.4 (Allocated Account Reports) of this Agreement or upon request.
Schedule B (Sub-Custodian Trust Provisions) will apply in relation to any Sub-Custodian or any other person with which the Custodian has deposited, or which is in possession, of any Physical Gold in a Fund Allocated Account.
Ownership of Physical Gold: The Custodian shall ensure that the Physical Gold belonging to a Fund shall at all times be free and clear of all liens and encumbrances and shall not be subject to any right, charge, security interest, lien or claim of any kind, whether arising by operation of law or otherwise, in favor of the Custodian, any Sub-Custodian or any creditor of any of them or any other person. The Custodian shall not loan, hypothecate, pledge or otherwise encumber any Physical Gold held in a Fund Allocated Account absent the Trusts written instructions to the contrary.
Location of Physical Gold: Unless otherwise agreed between the parties, Physical Gold held for the Trust in a Fund Allocated Account must be held by the Custodian at its London vault premises or, when Physical Gold has been allocated in a vault other than the Custodians London vault premises, by a Sub-Custodian or an Indirect Sub-Custodian. The Custodian agrees that it shall use commercially reasonable efforts promptly to transport any Physical Gold held for the Trust by a Sub-Custodian or an Indirect Sub-Custodian to the Custodians London vault premises at the Custodians cost and risk. The Custodian agrees that all delivery and packing shall be in accordance with the Rules and LBMA good market practices.
Replacement of Gold: Upon a determination by the Custodian that any Physical Gold credited to a Fund Allocated Account does not comply with the Rules, the Custodian shall as soon as practical replace such Physical Gold with Physical Gold which complies with the Rules by (i) debiting the Fund Allocated Account and crediting the Fund Unallocated Account with the requisite amount of Physical Gold to be replaced, (ii) providing replacement Physical Gold which complies with the Rules and which is of an amount that approximates the amount of Physical Gold to be replaced as closely as practical and (iii) debiting the Fund Unallocated Account and crediting the Fund Allocated Account with the requisite amount of replacement Physical Gold. The Custodian shall not start the foregoing replacement process on a particular London Business Day unless it is reasonably sure that such replacement process can be started and completed in the same London Business Day. The Custodian shall notify the Trust in accordance with the requirements under Clause 2.4
|(Allocation Account Reports) when (i) the Custodian has determined that Physical Gold credited to the Fund Allocated Account does not comply with the Rules and will be replaced and (ii) when replacement Physical Gold has been credited to the Fund Allocated Account in accordance with the above instructions. The cost and risk of any such replacement shall be borne by the Custodian.|
(i) The Custodian may use Sub-Custodians solely for the temporary custody and safekeeping of Physical Gold until transported to the Custodians London vault premises as provided in clause 7.4. The Sub-Custodians may themselves select sub-custodians (such sub-custodian of the relevant Sub-Custodian an Indirect Sub-Custodian) to provide such temporary custody and safekeeping of Physical Gold, but such Indirect Sub-Custodians shall not by such selection or otherwise be, or be considered to be, a Sub-Custodian. The Custodian will use commercially reasonable efforts for (a) any Physical Gold to be held by a Sub-Custodian, rather than an Indirect Sub-Custodian, and (b) (subject to clause 7.4) any Physical Gold held by an Indirect Sub-Custodian (which is also a Sub-Custodian) to be promptly held by it as a Sub-Custodian.
(ii) The Custodian will use reasonable care in selecting any Sub-Custodian and will only use an LPMCL approved delivery location. In selecting any Sub-Custodian with reasonable care, the Custodian is to determine if such Sub-Custodian can reasonably be expected to operate in a reasonable and prudent manner and in compliance with the Rules and all other relevant laws, rules and regulations applicable to its services as a sub-custodian of Gold. However, nothing in this Agreement shall constitute any representation or warranty by the Custodian as to the solvency or creditworthiness of any Sub-Custodian or Indirect Sub-Custodian. Any Sub-Custodian and Indirect Sub-Custodian shall be a LBMA member.
(iii) The Custodian will notify each of the Trust and the Sponsor within two Business Days (i) of the name and address of any new Sub-Custodian it proposes to be used by the Custodian for the purposes of this Agreement, or (ii) if it terminates its relationship with any Sub-Custodian that it uses for the purposes of this Agreement. The Custodian will otherwise provide the reports pursuant to Clause 2.4 (Allocated Account Reports) with respect to Sub-Custodians and any Indirect Sub-Custodians.
(iv) The receipt of notice by each of the Trust and the Sponsor that the Custodian proposes to use a Sub-Custodian shall not be deemed to limit the Custodians responsibility in selecting such Sub-Custodian.
Liability: Except for the Custodians obligations under clause 7.4 to promptly transport Physical Gold held with a Sub-Custodian or an Indirect Sub-Custodian to the Custodian, the Custodian shall not be liable in contract, tort or otherwise for any loss, damage or expense arising directly or indirectly from an act or omission, or insolvency, of any Sub-Custodian or any Indirect Sub-Custodian unless the appointment of that Sub-Custodian was made by the Custodian fraudulently, negligently or in bad faith.
Notice: The Custodian will provide the Trust upon request with the name and address of any Sub-Custodians and the Indirect Sub-Custodians, along with any other information which the Trust may reasonably request concerning the Sub-Custodians or such Indirect Sub-Custodians.
Monitoring: The Custodian shall monitor the conduct of each Sub-Custodian and, where it is legally permissible for it to do so, promptly advise the Trust of any difficulties or problems (financial, operational, or otherwise) existing with respect to such Sub-Custodian of which it is aware and will take appropriate and lawful action to protect and safekeep the Trusts Physical Gold deposited with such Sub-Custodian, including to the extent feasible, the withdrawal of such Physical Gold from such Sub-Custodian.
Each party represents and warrants to the other party, on the basis that each of its following representations and warranties is deemed repeated each time that a notice is given for the deposit or withdrawal of Physical Gold under this Agreement, that:
it is duly constituted and validly existing under the laws of its jurisdiction of constitution;
it has all necessary authority, powers, consents, licences and authorizations and has taken all necessary action to enable it lawfully to enter into and perform its duties and obligations under this Agreement;
the person or persons entering into this Agreement on its behalf has or have been duly authorized to do so; and
this Agreement and the obligations created under it are binding upon it and enforceable against it in accordance with the terms of this Agreement (subject to applicable principles of equity) and do not and will not violate the terms of the Rules, any applicable laws or any order, charge or agreement by which it is bound.
The Custodian represents and warrants to the Trust, on the basis that each of its following representations and warranties is deemed repeated each time that a notice is given for the deposit or withdrawal of Physical Gold under this Agreement, that:
it is a bank, duly organized under the laws of its country of organization as set forth above, and is regulated as such by that countrys government or any agency thereof;
any trust constituted under Schedule B has been validly constituted; and
it is a member of the LBMA.
FEES AND EXPENSES
Fees: For the Custodians services under this Agreement, the Custodian and the Sponsor have entered into a separate agreement, to which the Custodian has agreed, under which the Sponsor shall pay the Custodians fee for services under this Agreement.
Expenses: Pursuant to a separate written agreement between the Sponsor and the Custodian, to which the Custodian has agreed, the Sponsor shall pay to the Custodian on demand all costs, charges and expenses (excluding (i) any relevant taxes and VAT (if chargeable), duties and other governmental charges, (ii) fees for storage of the Physical Gold and any fees and expenses of Sub-Custodians, which will be recovered under clause 10.1, and (iii) indemnification obligations of a Fund under clause 11.5, which will be paid pursuant to the following sentence) incurred by the Custodian in connection with the performance of its duties and obligations under this Agreement or otherwise in connection with the Physical Gold. A Fund will procure payment on demand, solely from and to the extent of the assets of the Fund, of any other costs, charges and expenses not assumed by the Sponsor under its agreement with the Custodian referenced in this clause 10.2 (including any relevant taxes (other than VAT, which is addressed in clause 13.1), duties, other governmental charges and indemnification claims of the Custodian payable by the Fund pursuant to clause 11.5, but excluding fees for storage of the Physical Gold and any fees and expenses of Sub-Custodians, which will be recovered under clause 10.1) incurred by the Custodian in connection with the Physical Gold.
Credit Balances: No interest or other amount will be paid by the Custodian on any credit balance on a Fund Allocated Account.
No Recovery from a Fund: Amounts payable pursuant to this clause 10 (including clause 10.5) shall not be debited from a Fund Allocated Account, but shall be payable, as applicable, by the Sponsor or by the Trust on behalf of the Fund, and the Custodian hereby acknowledges that it will have no recourse against Physical Gold standing to the credit of the Fund Allocated Account or to the Trust in respect of any such amounts.
Default Interest: If the Trust or the Sponsor, as applicable, fails to procure payment to the Custodian of any amount when it is due, the Custodian reserves the right to charge the relevant party interest (both before and after any judgment) on any such unpaid amount calculated at a rate equal to 1% above either (i) the overnight London inter-bank offered rate (LIBOR); or (ii) where LIBOR is not available or is discontinued, such replacement rate agreed in writing by the Custodian and the Trust. Interest will accrue on a daily basis and will be due and payable by the relevant party as a separate debt.
SCOPE OF RESPONSIBILITY
Exclusion of Liability: The Custodian will use reasonable care in the performance of its duties under this Agreement and will only be responsible for any loss or damage suffered by a Fund as a direct result of any negligence, fraud or willful default on its part in the performance of its duties, and in which case its liability will not exceed the market value of the Gold credited to the Fund Unallocated Account and the Fund Allocated Account at the time such negligence, fraud or willful default is either discovered by or notified to the Custodian (such market value calculated using the nearest available LBMA Gold Price PM following the occurrence of such negligence, fraud or willful default), provided that, in the case of such discovery by or notification to the Custodian, the Custodian notifies the Sponsor and the Trust promptly after any discovery of such negligence, fraud or willful default. If the Custodian delivers from a Fund Allocated Account Gold that is not of the fine weight the Custodian has represented to the Fund or that is not in accordance with the Rules, recovery by the Fund, to the extent such recovery is otherwise allowed, shall not be barred by any delay in asserting a claim because of the failure to discover the corresponding loss or damage regardless of whether such loss or damage could or should have been discovered.
No Duty or Obligation: The Custodian is under no duty or obligation to make or take, or require any Sub-Custodian to make or take, any special arrangements or precautions beyond those required by the Rules or as specifically set forth in this Agreement.
Insurance: The Custodian (or one of its Affiliates) shall make such insurance arrangements from time to time in connection with the storage of the Trusts Gold under this Agreement as the Custodian considers appropriate and will be responsible for all costs, fees and expenses (including any relevant taxes) in relation to such insurance policy or policies. The Custodian shall provide the Trust with evidence of the Custodians insurance upon execution of this Agreement and, at the Trusts request, within 10 Business Days following the end of the calendar year. Additionally, the Custodian will allow the Trust and the Sponsor, upon 10 Business Days prior written notice, to review such insurance in connection with the preparation of any registration statement under the United States Securities Act of 1933, as amended, covering any Shares, or any amendment thereto. Any permission to review the Custodians insurance is limited to the term of this Agreement and is conditioned on the reviewing party executing a form of confidentiality agreement provided by the Custodian, or if the confidentiality agreement is already in force, acknowledging that the review is subject thereto. In the event of a reduction, cancellation or non-renewal of the Custodians insurance, or a change in the provider of the Custodians insurance, the Custodian will give the Trust and the Sponsor written notice of any such event within no more than 10 Business Days after the date of any such event.
Force Majeure: The Custodian shall not be liable for any delay in performance, or for the non-performance, of any of its obligations under this Agreement by reason of any cause beyond the Custodians reasonable control. This includes any act of God or war or terrorism, any breakdown, malfunction or failure of, or connected with, any communication, computer, transmission, clearing or settlement facilities, industrial action, or acts, rules and regulations of any governmental or supra national bodies or authorities or any relevant regulatory or self-regulatory organization.
Indemnity: Each Fund, solely from and to the extent of the assets of that Fund, shall indemnify and keep indemnified the Custodian (on an after tax basis) on demand against all costs and expenses, damages, liabilities and losses (other than VAT, which is addressed in clause 13.1) and the expenses assumed by the Sponsor under its agreement with the Custodian referenced in clause 10.2) which the Custodian may suffer or incur, directly or indirectly in connection with services provided to the Fund under this Agreement, except to the extent that such sums are due directly to the negligence, willful default or fraud of the Custodian. The foregoing indemnity shall also not apply to the Custodians fees that are paid by the Sponsor pursuant to clause 10.1.
Trust Liability: This Agreement is executed by or on behalf of the Trust with respect to each of the Funds and the obligations hereunder are not binding upon any of the trustees, officers or shareholders of the Trust individually. Separate and distinct records are maintained for each Fund and the assets associated with any such Fund are held and accounted for separately from the other assets of the Trust, or any other Fund of the Trust. The Custodian acknowledges that the Custodian is not entitled to use the assets of a particular Fund to discharge the debts, liabilities, obligations and expenses incurred, contracted for, or otherwise existing with respect to the Trust generally or any other Fund, and none of the debts, liabilities, obligations and expenses incurred, contracted for, or otherwise existing with respect to the Trust generally or any such other Fund shall be enforceable against the assets of that particular Fund. The Trusts Declaration of Trust is on file with the Trust.
Custodians Interests and Affiliates Interests: The Custodian has the right, without notifying the Trust, to act upon the Trusts instructions or to take any other action permitted by the terms of this Agreement where:
the Custodian, directly or indirectly, has a routine business interest in the consequences of such instruction or action;
except as otherwise provided in this Agreement, the Custodian processes the Trusts instructions on an aggregated basis together with similar instructions from other clients; or
the Custodian, except as otherwise provided in this Agreement, has a relationship with another party which does or may create a conflict with its duty to a Fund or the Trust including (without prejudice) circumstances where the Custodian or any of its associates may (i) act as financial adviser, banker or otherwise provide services to a contract counterparty of a Fund or the Trust; (ii) act in the same arrangement as agent for more than one client; or (iii) earn profits from any of the activities listed herein.
The Custodian or any of its divisions, branches or Affiliates may be in possession of information tending to show that the action required by a Funds instructions may not be in the Funds best interests, but shall not have any duty to disclose any such information.
Notice: Any termination notice given by the Trust, on behalf of a Fund under clause 12.2 must specify:
the date on which the termination will take effect;
the person to whom the Physical Gold is to be transferred; and
all other necessary arrangements for the transfer of Physical Gold to the order of the Fund.
Term: This Agreement shall have a fixed term up to and including 4 (four) years and will automatically renew for further successive terms of 1 (one) year thereafter unless terminated by the parties in accordance with this clause 12; provided that during such periods (i) either the Trust, on behalf of one or more Funds, or the Custodian may terminate this Agreement for any reason or for no reason by giving not less than 90 days written notice to the other party and (ii) this Agreement may be terminated immediately upon written notice as follows:
by the Trust, if the Custodian ceases to offer the services contemplated by this Agreement to its clients or proposes to withdraw from the gold bullion business;
by the Trust or the Custodian, if it becomes unlawful for the Custodian to be a party to this Agreement or to offer its services to the Trust on the terms contemplated by this Agreement or if it becomes unlawful for a Fund or the Trust to receive such services or for the Trust to be a party to this Agreement;
by the Custodian, if there is any event which, in the Custodians reasonable view, indicates the Trusts or the Sponsors insolvency or impending insolvency;
by the Trust, if there is any event which, in the Sponsors reasonable view, indicates the Custodians or the Sponsors insolvency or impending insolvency;
by the Trust, with respect to one or more Funds if a Fund or the Trust is to be terminated; or
by the Trust or by the Custodian, if the Unallocated Gold Account Agreement ceases to be in full force and effect at any time.
Change in the Sponsor: If there is any change in the identity of the Sponsor, then the Custodian, the Sponsor and the Trust shall, subject to the last sentence of this clause 12.3, execute such documents and shall take such actions as the new Sponsor and the outgoing Sponsor may reasonably require for the purpose of vesting in the new Sponsor the rights and obligations of the outgoing Sponsor, and releasing the outgoing Sponsor from its future obligations under this Agreement. The Custodians obligations under this clause 12.3 shall be conditioned on the Custodian having conducted due diligence in accordance with its internal procedures to the Custodians reasonable satisfaction on any such new Sponsor.
Redelivery Arrangements: If the Trust does not make arrangements acceptable to the Custodian for the delivery of the Physical Gold, the Custodian may continue to maintain the applicable Fund Allocated Account, in which case the Custodian will continue to charge the fees and expenses payable under clause 10. If the Trust has not made arrangements acceptable to the Custodian for the transfer of Physical Gold from a Fund Allocated Account within 6 months of the date specified in the termination notice as the date on which the termination will take effect, the Custodian will be entitled to close the Fund Allocated Account and sell the Physical Gold (at such time and on such markets as the Custodian considers appropriate) and account to the Fund for the proceeds.
Effect of Termination; Existing Rights: Termination of this Agreement with respect to the coverage of any one Fund shall in no way affect the rights and duties under this Agreement with respect to any other Fund. Termination shall not affect rights and obligations then outstanding under this Agreement which shall continue to be governed by this Agreement until all obligations have been fully performed.
VALUE ADDED TAX
VAT Inclusive: All sums payable or other consideration provided to the Custodian by the Trust or the Sponsor in connection with this Agreement and the Unallocated Gold Account Agreement (including pursuant to the separate agreement referred to in clause 10.1 of this Agreement) shall be deemed to be inclusive of VAT.
Notices: Except as provided in clauses 2.4, 5.2 and 16.5, any notice or other communication shall be delivered personally or sent by first class post, pre-paid recorded delivery (or air mail if overseas), authenticated electronic transmission (including email and SWIFT) or such other electronic transmission as the parties may from time to time agree, to the party due to receive the notice or communication, at its address, number or destination set out in clause 14.3 or another address, number or destination specified by that party by written notice to the other.
Deemed Receipt of Notice: A notice or other communication under or in connection with clause 14.1 will be deemed received only if actually received or delivered.
Contact Information: The contact information of the parties for the purposes of clauses 5.2 and 14.1 is:
ICBC Standard Bank Plc
20 Gresham Street
Attention: Precious Metals Operations
E-mail: ***@*** and ***@***
World Gold Trust
c/o WGC USA Asset Management Company, LLC
685 Third Avenue, 27th Floor
New York, NY 10017
Attention: Managing Director
With copy to: ***@***
Telephone: 212 ###-###-####
The contact information of the Sponsor for purposes of receiving notices under this Agreement is:
WGC USA Asset Management Company, LLC
685 Third Avenue, 27th Floor
New York, NY 10017
Attention: Managing Director
Telephone: 212 ###-###-####
With copy to: ***@***
Recording of Calls: The Custodian and the Trust may each record telephone conversations without use of a warning tone. Such recordings will be the recording partys sole property and accepted by the other party hereto as evidence of the orders or instructions that are permitted to be given orally under this Agreement, provided that (i) in case of any dispute or disagreement regarding any conversation so recorded the recording party will promptly share the recordings with the other party and its representatives and (ii) the recording party will have no obligation to retain any such recordings prior to becoming aware of any such dispute or disagreement.
Amendment of Schedules: The name of any Fund listed on Schedule A may be changed by the Sponsor without amendment to this Agreement provided that the Trust shall notify the Custodian promptly upon, and provide the Custodian with documentary evidence of, any such name change. Additional series of the Trust (each a New Fund) may from time to time become parties to this Agreement by (a) delivery to the Custodian of (i) an instrument of adherence agreeing to become bound by and party to this Agreement executed by the Trust on behalf of such New Fund, and (ii) an amendment and restatement of Schedule A setting forth the New Fund, and (b) upon receipt of the foregoing documents, the Custodian may agree in writing to the addition of such New Fund, which agreement shall not be unreasonably withheld.
No Advice: The Custodians duties and obligations under this Agreement do not include providing the other party with investment advice. In asking the Custodian to open and maintain a Fund Allocated Account, the Trust acknowledges that the Custodian shall not owe to a Fund or the Trust any duty to exercise any judgement on its behalf as to the merits or suitability of any deposits into, or withdrawals from, the Fund Allocated Account.
Rights and Remedies: The Custodian hereby waives any right it has or may hereafter acquire to combine, consolidate or merge the Metal Accounts with any other account of the Trust or a Fund or to set off any liabilities of the Trust or a Fund to the Custodian and agrees that it may not set off, transfer or combine or withhold payment of any sum standing to the credit or to be credited to the Metal Accounts in or towards or conditionally upon satisfaction of any liabilities to it of the Trust or a Fund. Subject thereto, the Custodians rights under this Agreement are in addition to, and independent of, any other rights which the Custodian may have at any time in relation to the Metal Accounts.
Business Day: If an obligation of a party would otherwise be due to be performed on a day which is not a New York Business Day or a London Business Day, as the case may be, in respect of a Fund Allocated Account, such obligation shall be due to be performed on the next succeeding New York Business Day or London Business Day, as the case may be, in respect of the Fund Allocated Account.
Assignment: This Agreement is for the benefit of and binding upon both the Custodian and the Trust and their respective successors and assigns. Save as expressly provided in clause 12.3 and this clause 15.5, no party may assign, transfer or encumber, or purport to assign, transfer or encumber, any right or obligation under this Agreement unless the other party otherwise consents in writing. This clause shall not restrict the Custodians power to merge or consolidate with any party, or to dispose of all or part of its custody business, and further provided that this clause shall not restrict the Trust from assigning its rights hereunder to a Shareholder to the extent required for the Trust to fulfill its obligations.
Amendments: Any amendment to this Agreement must be agreed in writing and be signed by the Trust and the Custodian. Unless otherwise agreed, an amendment will not affect any legal rights or obligations which may already have arisen.
Partial Invalidity: If any of the clauses (or part of a clause) of this Agreement becomes invalid or unenforceable in any way under the Rules or any law, the validity of the remaining clauses (or part of a clause) will not in any way be affected or impaired.
Liability: Nothing in this Agreement shall exclude or limit any liability which cannot lawfully be excluded or limited (e.g. liability for personal injury or death caused by negligence).
Entire Agreement: This Agreement and the Unallocated Gold Account Agreement represent the entire agreement between the parties in respect of their subject matter. This Agreement and the Unallocated Gold Account Agreement supersede and replace any prior existing agreement between the parties hereto relating to the same subject matter.
Counterparts: This Agreement may be executed in any number of counterparts, each of which when executed and delivered is an original, but all the counterparts together constitute the same agreement.
Compliance with Laws: Each party undertakes that in the performance of this Agreement and transactions connected with this Agreement it shall comply with all applicable anti-bribery and anti-corruption laws, sanctions, accounting and anti-money laundering legislation and shall maintain adequate and appropriate policies and procedures designed to ensure and which are reasonably expected to ensure continued compliance with such anti-bribery and anti-corruption laws, sanctions, accounting and anti-money laundering legislation. Furthermore and in connection with the foregoing, the Trust undertakes to the Custodian that it has conducted appropriate due diligence on any recipient of Gold and that the Trust will comply with any reasonable requests the Custodian may make from time to time for confirmation and evidence that the Trust has complied with its obligations pursuant to this clause 15.11 (including in respect of Authorized Participants, the Sponsor and Shareholders) and acknowledges that should it fail to do so the Custodian may terminate this Agreement immediately in accordance with the provisions of clause 12.2(ii) above.
GOVERNING LAW AND JURISDICTION
Governing Law: This Agreement is governed by, and will be construed in accordance with, English law.
Jurisdiction: The Trust and the Custodian agree that the courts of the State of New York, in the United States of America, and the United States federal court located in the Borough of Manhattan in such state, are to have jurisdiction to settle any Disputes which may arise out of or in connection with this Agreement and, for these purposes the Trust and the Custodian irrevocably submits to the non-exclusive jurisdiction of such courts, waive any claim of forum non conveniens and any objection to laying of venue, and further waive any personal service.
Waiver of Immunity: To the extent that a party may in any jurisdiction claim any immunity from suit, judgment, enforcement or otherwise howsoever, such party agrees not to claim, and irrevocably waives, any such immunity to which it would otherwise be entitled to (whether on grounds of sovereignty or otherwise) to the full extent permitted by the laws of such jurisdiction.
Third Party Rights: Except with respect to the Sponsor, which shall be considered a beneficiary (as applicable) of clauses 2.7, 2.8, 3.2, 4.3, 6.2, 8.1, 11.1, 11.3, 12.3, 14.3, and 16.4, the Custodian does not owe any duty or obligation or have any liability towards any person who is not a party to this Agreement. Except as set forth in this clause 16.4, this Agreement does not confer a benefit on any person who is not a party
|to it. The parties to this Agreement do not intend that any term of this Agreement shall be enforceable by any person who is not a party to it and do intend that the Contracts (Rights of Third Parties) 1999 Act shall not apply to this Agreement, provided that the Sponsor may enforce its rights under clauses 2.7, 2.8, 3.2, 4.3, 6.2, 8.1, 11.1, 11.3, 12.3, 14.3 and 16.4.|
Service of Process: Process by which any proceedings are begun may be served on a party by being delivered to the partys address specified below. This does not affect any right to serve process in another manner permitted by law.
Custodians Address for service of process:
ICBC Standard Bank Plc
20 Gresham Street
Attention: The Head of Legal
Trusts Address for service of process:
World Gold Trust
c/o WGC USA Asset Management Company, LLC
685 Third Avenue, 27th Floor
New York, NY 10017
Attention: General Counsel
Telephone: 212 ###-###-####
[Signature Page Follows]
IN WITNESS WHEREOF, this Agreement has been executed and delivered as a deed by each party to this Agreement on the date set out on the cover page of this Agreement.
|Signed as a deed on behalf of||Signed as a deed on behalf of|
|ICBC STANDARD BANK PLC||ICBC STANDARD BANK PLC|
|Name Shoujiang Wang||Name Katarina Cvijovic|
|Title CMO, ICBC Standard Bank Plc||Title MD, Head of Commodities|
|In the presence of:||In the presence of:|
|Name: Lesley Cunningham||Name: Lesley Cunningham|
|Address: 20 Gresham Street||Address: 20 Gresham Street|
|Occupation: PA||Occupation: PA|
Signed as a deed on behalf of
|WORLD GOLD TRUST |
on behalf of its series set forth on Schedule A
Name Joseph R. Cavatoni
Title Principal Executive Officer
In the presence of:
Name: Brandon Woods
Address: 685 Third Avenue, New York, NY 10017
Occupation: Principal Financial and Accounting Officer
[Signature Page to Allocated Gold Account Agreement]
List of Funds
SPDR® Gold MiniShares Trust
Sub-Custodian Trust Provisions
DECLARATION OF TRUST
The Custodian irrevocably declares that the Custodian shall hold all right, title, interest and benefit in, to and under the Trust Property as trustee upon bare trust for the Trusts absolute benefit in accordance with the terms of this Schedule.
In this Schedule:
Sub-Custodian Trust means the trust declared by the Custodian in paragraph 1.1 above; and
Trust Property means the Custodians right, title and interest in and to:
any Physical Gold in a Fund Allocated Account deposited with, or in the possession of, a Sub-Custodian;
any Physical Gold in a Fund Allocated Account deposited with, or in the possession of, any other person;
any agreement with a Sub-Custodian or other such person in respect of such Physical Gold; and
any rights of recourse against a Sub-Custodian or other such person in respect of such Physical Gold.
APPLICATION OF TRUST PROPERTY
The Trust is only entitled to instruct the Custodian to take any action in relation to the Trust Property that the Trust would otherwise be entitled to instruct the Custodian to take pursuant to the terms of this Agreement (disregarding this Schedule B) and the Custodian will only be required to take any such action to the same extent that the Custodian would be required to take pursuant to the terms of this Agreement (disregarding this Schedule B).
DISAPPLICATION OF TRUSTEE ACTS
Section 1 of the Trustee Act 2000 shall not apply to the Custodians duties as trustee in respect of the Trust Property. Where there are any inconsistencies between the Trustee Act 1925, the Trustee Act 2000 and the provisions of this Agreement, the provisions of this Agreement shall, to the extent allowed by law, prevail and, in the case of any such inconsistency with the Trustee Act 2000, the provisions of this Agreement shall constitute a restriction or exclusion for the purposes of that Act.
In acting as trustee in respect of the Trust Property, the Custodian shall have all of the obligations, liabilities rights, powers, indemnities and protections applicable to the Custodian under this Agreement including, without limitation, those under Clause 7.4 (Location of Bullion), Clause 8 (Sub-Custodians), Clause 10 (Fees and Expenses), Clause 11 (Scope of Responsibility) and Clause 15 (General).
The indemnity in Clause 11.5 shall apply to the Sub-Custodian Trust.
No provision of this Agreement shall require the Custodian to do anything which is illegal in the place of its performance, or contrary to any applicable law or regulation or the applicable requirements of any regulatory authority.
The Sub-Custodian Trust shall be terminated:
by notice in writing from the Trust to the Custodian, in which case the terms of this Agreement (disregarding this Schedule B) shall apply; or
subject to Clauses 12.4 and 12.5, upon termination of this Agreement in accordance with Clause 12 (Termination).
The perpetuity period for the purposes of the Sub-Custodian Trust shall be the period of 80 years from the date of this Agreement.
CONTRACTING WITH THE TRUST AND OTHERS
Neither the Custodian nor any of the Custodians directors or officers or holding companies, subsidiaries or associated companies shall by reason of the Custodians duties in relation to the Sub-Custodian Trust be in any way precluded from entering into or being interested in any other trust arrangement, contract or financial or other transaction or arrangement with the Trust or any person or body corporate associated with the Trust.
References in this Schedule C to we, us and our shall be deemed references to the Custodian and to you and your shall be deemed references to the Trust.
The Phoenix Portal and Phoenix Services (defined in Paragraph 2 below) are facilities that we provide without additional charge to customers who maintain with us allocated or unallocated precious metal accounts.
The terms and conditions set out in this Schedule (Phoenix Terms) along with the Clauses of this Agreement apply to and govern your use of the Phoenix Portal and Phoenix Services.
The Phoenix Terms are an integral part of the Agreement. The Phoenix Terms and the Clauses and other Schedules of the Agreement should therefore be read as one.
To the extent that there is any conflict or inconsistency between the Phoenix Terms and the Clauses of the Agreement:
1.4.1. in relation to the Phoenix Portal and Phoenix Services, the Phoenix Terms shall take priority; and
1.4.2. in all other cases the Clauses and other Schedules of the Agreement shall take priority.
In this Schedule (including any appendixes hereto):
Accounts means your Unallocated Accounts and/or your Allocated Accounts, as the case may be;
Authorised User means a person listed in the Authorised User List;
Authorised User List means the list of your Authorised Users (and their relevant access rights) that is agreed in writing between us from time to time;
Data Protection Laws means Regulation 2016/679 of the European Parliament and of the Council on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation);
End User Terms has the meaning given in Paragraph 7.3;
Intellectual Property Rights means all intellectual property rights, including patents, supplementary protection certificates, petty patents, utility models, trademarks, database rights, rights in designs, copyrights and topography rights (whether or not any of these rights are registered, and including applications and the right to apply for registration of any such rights) and all rights and forms of protection of a similar nature or having equivalent or similar effect to any of these which may subsist anywhere in the world, in each case for their full term, and together with any renewals or extensions;
Permitted Purpose has the meaning given in Paragraph 3.2 of this Schedule;
Phoenix Portal means the web-based application hosted by us or on our behalf that allows our customers to view online their allocated and unallocated precious metal accounts, and to instruct transfers to and from those accounts;
Phoenix Services means the services and functions that we make available to our customers through the Phoenix Portal;
Portal Data means information relating to you or your Accounts that is accessible by means of the Phoenix Portal.
Our provision of the Phoenix Portal and Phoenix Services
From time to time, we may make available to you the Phoenix Portal and Phoenix Services in accordance with these Phoenix Terms.
Subject to your compliance with these Phoenix Terms, we grant you a non-exclusive, non-transferable right to access and use the Phoenix Portal and Phoenix Services for the purpose of:
viewing the Account Balance of your Accounts;
viewing recent activity on your Accounts, including deposits and withdrawals;
downloading and printing Account Balances and transaction history for your Accounts; and
instructing us to make transfers into and out of your Accounts,
(the Permitted Purpose). You shall not use the Phoenix Portal or Phoenix Services for any purpose other than the Permitted Purpose.
Subject to your compliance with these Phoenix Terms, we also grant you the right to allow Authorised Users to access and use the Phoenix Portal and Phoenix Services solely for the Permitted Purpose.
You shall ensure that your Authorised User List and all other information concerning Authorised Users is accurate, up to date and complete at all times. You shall notify us promptly:
if any person listed as an Authorised User in the Authorised User List is no longer authorised by you to access your Accounts through the Phoenix Portal; and/or
of any other changes necessary to ensure that Authorised User List is accurate, up-to-date and complete,
and at our request you shall promptly provide us with an updated version of the Authorised User List to reflect such changes.
Each Authorised User will be allocated (or invited to create) one or more unique usernames, passwords, tokens, computer programs or applications, or other identifiers (Authenticators) which will grant that Authorised User secure access to the Phoenix Portal and Phoenix Services. Authorised Users will need to enter their Authenticators each time they wish to access the Phoenix Portal or use any of the Phoenix Services.
Access rights may differ from one Authorised User to another. The access rights to be granted to each Authorised User are indicated in the Authorised User List. You shall ensure that the Authenticators are used exclusively by the relevant Authorised User.
You shall keep and procure that each Authorised User keeps the Authenticators allocated to or created by him or her confidential. Other than with our prior written consent:
you shall not disclose Authenticators to any person; and
you shall procure that each Authorised Users does not disclose Authenticators allocated to or created by him or her to any other person.
You shall use adequate security procedures to ensure the security of the Authenticators and to prevent unauthorised access to and use of the Phoenix Portal and/or Phoenix Services. You shall promptly notify us if you become aware of, or have reasonable grounds to suspect, the loss, theft or disclosure to any third party of any Authenticators or of any unauthorised use of such Authenticators.
You shall assume full responsibility for any and all use, unauthorised use or misuse of the Phoenix Portal and/or Phoenix Services by Authorised Users, or by any other person using the Authenticators.
You shall procure that all Authorised Users fully observe and comply with this Agreement and any applicable End User Terms in relation to their use of the Phoenix Portal and Phoenix Services. You acknowledge and agree that any breach of this Agreement by an Authorised User shall constitute a breach of this Agreement by you.
If we have reasonable grounds to believe that unauthorised persons are using any Authenticators allocated to or created by you or to any Authorised User with or without your knowledge, we may, with or without prior notice, suspend your rights and the rights of your Authorised Users to access and use the Phoenix Portal and Phoenix Services.
Instructions via the Phoenix Portal
Subject to Paragraph 5.4 of this Schedule, we are entitled to assume that where an instruction is submitted through the Phoenix Portal using Authenticators allocated to or created by you or any Authorised User (Authorised Instructions), such instruction has been properly authorised by you. You authorise us to act on all Authorised Instructions; and you accept that you will be irrevocably bound by all transfers that we execute in accordance with any Authorised Instruction.
We shall not be liable for any losses that you or any other person suffers as a result of:
an Authorised Instruction being incomplete or inaccurate or containing any errors;
an Authorised Instruction being corrupted in the course of transmission;
any delay in the transmission or receipt by us of an Authorised Instruction; or
any delay or failure on our part, for any reason whatsoever, in carrying out any Authorised Instruction.
You acknowledge that it is your responsibility to verify with us that we have received and acted on any Authorised Instruction.
In the absence of wilful default or fraud on our part, the risk of fraudulent or unauthorised use of the Phoenix Portal and/or Phoenix Services shall be borne by you.
You agree that it is your responsibility to provide, at your own expense, all equipment, software and services necessary for you and Authorised Users to access and use the Phoenix Portal and Phoenix Services, including computers, terminal equipment, software (including operating systems and applications and any updates of those items), internet access and communications services. You are solely responsible for any errors made by, or the failure of, such equipment, software and services that you or Authorised Users use to access the Phoenix Portal or the Phoenix Services.
Conditions governing use
You shall not use the Phoenix Portal or Phoenix Services for any activity which breaches applicable laws or regulations.
You shall not upload, post, otherwise transmit or provide access to content through the Phoenix Portal which is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, invasive of anothers privacy, hateful, or racially, ethnically or otherwise objectionable.
You shall comply with any additional requirements, including any policies relating to privacy or cookies, any additional terms and conditions governing and instructions, regarding your access to and use of the Phoenix Portal and Phoenix Services that we notify you from time to time (End User Terms).
You shall not access the Phoenix Portal except through the interfaces expressly made available by us.
You shall not override any security feature of the Phoenix Portal.
You shall not access or attempt to access any other persons account (including but not limited to any other persons allocated or unallocated precious metal account) through the Phoenix Portal.
You shall not reproduce, copy, disassemble, decompile, or reverse translate or in any other manner decode the Phoenix Portal, except as permitted by law.
You shall not use the Phoenix Portal or Phoenix Services:
to send unsolicited email or instant messages or any unreasonably large files;
to create a false identity, or to impersonate any person or organisation;
to upload post, email or transmit viruses, trojan horses, worms, time bombs, cancelbots, corrupted files, or any other software, files or programs that may interrupt, damage, destroy, disable, impair or limit the operation or functionality of the Phoenix Portal or Phoenix Services;
to interfere with any other persons lawful use of the Phoenix Portal or Phoenix Services.
Intellectual property rights
All Intellectual Property Rights in or to the Phoenix Portal and all information, content, material and data displayed on the Phoenix Portal belong to us or our third party licensors and all such rights are reserved.
Save as expressly provided in this Agreement, you may not and may not permit any third party to use, copy, modify, publish, extract, display, disclose, license, transfer, reproduce, or create derivative works from any information, content, material or data displayed on the Phoenix Portal without our prior written consent.
You may not use any automated software, process, program or system, robot, web crawler, spider, data mining, trawling or other screen-scraping software process, program or system in relation to the Phoenix Portal.
You must retain and may not remove any notices concerning copyright, trade mark or any other intellectual property ownership in relation to the Phoenix Portal.
You must not print or download any business names, logos, trademarks or service marks displayed on the Phoenix Portal except as part of the text of which they form part.
The Phoenix Service is provided on an as is and as available basis.
We make no warranties or representations and give no assurances or guarantees whatsoever as to the quality, fitness for any particular purpose, availability, performance, functionality, reliability, accuracy, or completeness of the Phoenix Portal, Phoenix Services or any Portal Data, nor do we warrant or represent or give any assurance or guarantee that that Phoenix Portal, Phoenix Services or Portal Data are free from viruses. You acknowledge that any reliance that you place on Portal Data and/or any use that you make of Portal Data are entirely at your risk.
Except as expressly set out in this Agreement, all warranties, terms, conditions and undertakings, whether express or implied by common law, statute, course of dealing or otherwise in relation to the Phoenix Portal, the Phoenix Services and Portal Data are excluded to the fullest extent permitted by law.
Without limiting the foregoing, we give no guarantee that the Phoenix Portal or the Phoenix Services will operate error-free and you acknowledge that your use of the Phoenix Portal or the Phoenix Services may be subject to errors, malfunctions, disruptions or other failures. In no event will we be liable for any loss, damage, cost or expense which you or any Authorised User might incur as a result of any errors, malfunctions disruptions, or failures in the Phoenix Portal, the Phoenix Services or any Portal Data.
Nothing in these Phoenix Terms is intended to exclude or limit our or your liability for:
death or personal injury caused negligence;
fraud or fraudulent misrepresentation; or
any liability that by law cannot be excluded or limited.
You indemnify us and will hold us harmless from and against all losses, costs expenses, (including legal costs and expenses on an full indemnity basis) liabilities, actions, claims, damages, demands, fines, penalties and sanctions (including amounts paid in settlement, out-of-pocket expenses and interest) that we suffer or incur as a result of your breach of the Phoenix Terms or the use of the Phoenix Portal or Phoenix Services.
You will comply with and be responsible for fulfilling your obligations under Data Protection Laws as data controller/controller in respect of personal data of Authorised Users.
We will comply with and be responsible for fulfilling our obligations under Data Protection Laws as data controller/controller in respect of personal data of Authorised Users.
Termination or suspension
We may withdraw provision of the Phoenix Portal and Phoenix Services at any time and for any reason and without any liability to you or any Authorised User. Where reasonably practicable, we will use reasonable efforts to give you prior notice of withdrawal of the Phoenix Portal and Phoenix Services.
We may terminate or suspend:
your access to and use of the Phoenix Portal and Phoenix Services; and/or
any Authorised Users access to and use of the Phoenix Portal and Phoenix Services,
at any time by giving you written notice and for any reason without any liability to you or any Authorised User.
On termination of this Agreement or if we terminate or suspend your or any Authorised Users access to and use of the Phoenix Portal and Phoenix Services pursuant to Paragraph 12.2 of this Schedule:
we may revoke relevant Authenticators allocated to or created by you or the relevant Authorised User;
the rights granted to you under Paragraphs 3.2 and 4.1 of this Schedule shall immediately terminate; and
you shall immediately cease to access and use, and shall procure that the relevant Authorised User ceases to access and use, the Phoenix Portal and Phoenix Services.
Our rights under this Paragraph 12 apply only with respect to the Phoenix Portal and Phoenix Services. No action taken by us under this Paragraph 12 will impact on your rights and obligations under the Clauses of and Schedules to this Agreement.